Lord Triesman: My Lords, if we reflect on where Uganda was 15 or 20 years ago and where it is now, we see that it has been one of the success stories of Africa. There has just been a general election with a substantial turnout, in which President Museveni was re-elected with a substantial majority. I do not know whether the election was flawless, but all immediate reports suggest that it was very credible. We are not starting with a blank sheet of paper in a country like Uganda and there are problems but, today, we should perhaps think of its success rather than anything else.

Baroness Scotland of Asthal: My Lords, of course, we must ensure that accountability is clear. We have set out the role, which is focusing on critical strategic issues; appointing the chief officer and other ACPO ranks and holding him or her to account; setting the budget; and determining the level of precepts. All that is essential. We must consider the size of police authorities. They must be manageable and fit for purpose. Pulling that together is of the utmost importance.

Lord Triesman: My Lords, the right response is to say what we are doing about it. The Better Regulation Commission has urged us to be ambitious. In March 2005, its report, Regulation—Less is More, led to three specific proposals on which we are acting. We measure and set targets to reduce administrative costs on business in the voluntary sector. We work on the principle of one-in/one-out approaches to new regulations—there could be an argument for one in and rather more out, but I understand the point—and on regulatory simplification programmes across government. That is what we are urging on other people. I think that it is right to do so.

Baroness Knight of Collingtree: My Lords, why are noble Lords on the Government side so anxious to denigrate academic excellence so far as choice for schools is concerned, yet at the same time sport is given a totally different facet, so that only excellence in sport will ensure that a pupil gets a place in a certain school.

Moved accordingly, and, on Question, Motion agreed to.
	COMMONS AMENDMENTS AND REASONS
	[The page and line references are to Bill 38 as first printed for the Lords.]
	Motion A
	5 Clause 1, page 2, line 1, leave out subsection (4) and insert—
	"( ) For the purposes of this section, "indirect encouragement" comprises the making of a statement describing terrorism in such a way that the listener would infer that he should emulate it."
	11 Clause 2, page 3, line 23, leave out subsection (4)
	15 Page 3, line 46, leave out paragraphs (a) and (b) and insert "anything mentioned in subsections (1), (1A) and (2)"
	28 Clause 3, page 6, line 25, leave out subsection (9)
	31 Clause 20, page 18, leave out lines 13 and 14
	32 Page 18, line 14, at end insert—
	""indirect encouragement" comprises a statement describing terrorism in such a way that the listener would infer that he should emulate it;"
	34 Clause 21, page 19, leave out lines 29 to 44 and insert "indirectly encourage terrorism, within the meaning of "indirect encouragement" as specified in section Terrorism Act 2006"
	The Commons disagree to Lords Amendments Nos. 5, 11, 15, 28, 31, 32 and 34, but propose Amendments 34A and 34B in lieu—
	34A Page 3, line 46, leave out paragraphs (a) and (b) and insert "anything mentioned in subsections (1) to (4)"
	34B Page 19, line 39, leave out "of a description" and insert "that is illustrative of a type"

Baroness Scotland of Asthal: My Lords, I beg to move Motion A, that the House do not insist on its Amendments Nos. 5, 11, 15, 28, 31, 32 and 34 and do agree to Amendments Nos. 34A and 34B proposed by the Commons in lieu. I urge noble Lords to accept the decision of the other place when it decided not to agree with your Lordships' amendment in respect of glorification. I also invite noble Lords to accept the two amendments in lieu which were made by another place and to reject the various amendments that have been tabled to Motion A.
	The two amendments in lieu made by another place are minor tidying-up provisions and I do not intend to devote much time to them. However, I should point out that Commons Amendment No. 34B responds directly to criticisms which your Lordships made of the drafting. I hope that it will be welcomed. The key issue is whether this House should again disagree with another place and seek to restore the wording which your Lordships adopted at Third Reading, or a modified version of that wording.
	If, as I hope will be the case, your Lordships do not insist on your amendment, your Lordships will accept that the Bill should contain provisions relating explicitly to the glorification of terrorism. That is important because people who glorify terrorism help to create a climate in which terrorism is regarded as acceptable. This should clearly be outlawed. Your Lordships will also remember that, in outlawing the glorification of terrorism when it is an encouragement to terrorism, our legislation will be in line with decisions taken at an international level. The word "glorification" is not something that the United Kingdom has just plucked from the air but features in the preamble to United Nations Security Council Resolution 1624. That resolution speaks of:
	"Condemning also in the strongest terms the incitement of terrorist acts and repudiating attempts at the justification or glorification . . . of terrorist acts that may incite further terrorist acts".
	It is also expected nationally that we should outlaw glorification when it is an encouragement to terrorism. I say this because the public elected the Government on the basis of a manifesto which included a commitment to outlawing the glorification of terrorism. Let me remind your Lordships what the manifesto said:
	"we will introduce new laws to help catch and convict those involved in helping to plan terrorist activity or who glorify or condone acts of terror".
	I respectfully suggest that that could not have been clearer. We should demonstrate to our electorate that we take its views seriously; we should demonstrate too that we are concerned to protect its interests by creating an offence that is legally sound and can act as a deterrent.
	The Members of another place have given effect to the wishes of the electorate not just once, but three times. There have been three separate votes on the precise question of whether the Bill should include references to glorification. Each time they have voted on the matter the majority in favour of referring to glorification has become larger. We are, rightly, a revising Chamber. We can invite the other place to think again. That is what we have done. The other place had a very full debate on this subject two weeks ago and the elected Chamber, in giving effect to the commitment in the manifesto, has now made it clear that the Bill should refer to glorification.
	If your Lordships oppose the appearance of the word "glorification" in the Bill this House would be opposing both the elected House and those who elected its members. It would be doing so in favour of an amendment which is defective for three reasons, which I will explain in turn. The reference in the wording inserted by your Lordships to "listener" limited the scope of the provision. It confined the definition to statements that are capable of being heard and so, for example, would have excluded those written on placards.
	In that respect, your Lordships may be interested to know what the shadow Attorney General, speaking in another place, said on the issue. His first reaction was the optimistic and intriguing suggestion that the meaning of the word "listening" could include "reading". I will not comment further on that suggestion. More revealingly, however, he went on to say on 15 February (at col. 1437 of the Official Report) that he accepted texts could be "improved or changed". I am pleased to note that Amendment No. 34C standing in the name of the noble Lord, Lord Kingsland, seeks to address that particular weakness. By contrast, I confess to some surprise that the Motion A1, from the Liberal Democrat Benches, makes no such concession. I will be interested to hear how the noble Lord, Lord Goodhart, puts the difference between listener and reader.
	However, even with the changes that the noble Lord, Lord Kingsland, seeks to make, the wording which your Lordships sought to insert in the Bill causes problems. I have taken that in tabling the amendments the noble Lord, Lord Kingsland, is seeking to address the point about glorification, about which we are concerned—I absolutely accept that. But instead of being an exemplary description of what indirect encouragement could be, it is an exhaustive description. In other words, the offence is limited so that it is committed by making available to the public a statement directly encouraging terrorism or a statement indirectly encouraging terrorism but only by actually describing it in such a way that the listener will infer that he should emulate it. But the use of the word "describing" means that the Bill would not catch, as the original wording would, glorification, praise or celebration of an act of terrorism that does not actually describe the act. The revised wording put forward today by the noble Lord, Lord Kingsland, does not address those points.
	The second objection to these amendments is that those who seek to recruit terrorists do so not just by directly encouraging terrorism or by provoking people to commit violent acts, but by glorifying terrorism and terrorists. They may claim that terrorists are heroes whose actions should be copied, or that terrorists go straight to paradise when they die. The single word that best captures this is "glorification". It is this clarity of meaning that makes that word so important: not only does our electorate know what it means, and not only is it defined in the Bill with total clarity for the courts, but those who seek to recruit terrorists also know what it means. If this word appears in the Bill, it may—

The Lord Bishop of Oxford: My Lords, I am sorry to interrupt the noble Baroness and thank her for allowing me to intervene. I agree with the noble Lord that the opportunity to revise is important. Does the noble Baroness agree that we are in a muddle over this fundamental disagreement because of the highly unsatisfactory definition of terrorism in the 2000 Act? We need to wait for the noble Lord, Lord Carlile, to bring forward a more satisfactory definition of terrorism. I believe that with a more satisfactory definition we can achieve a consensus.

Baroness Scotland of Asthal: My Lords, most importantly, we do not look at the issue of glorification in isolation; we have to consider it within Clause 1. It is important that we remind ourselves of the hurdles that we have now put into the Bill which will have to be satisfied by the prosecution if this offence is to be made out. In Clause 1 we have agreed that the offence should be committed only if the requisite mental tests of intent and subjective recklessness are satisfied. The offence will be committed only if someone encourages terrorism, whether directly or indirectly—including through the glorification of terrorism, because it is a species of the way in which one can commit this act—intending to encourage it, or knowingly taking an unreasonable risk that he will encourage it. In that context, we cannot see why anyone should object to the inclusion of a provision relating to glorification of terrorism. Nor can we see any merit in the halfway house contained in the amendment of the noble and learned Lord, Lord Lloyd of Berwick. We believe, just as with many other words, that the court will be able, in given cases, to explain this issue with a degree of clarity which will enable juries to come to a decision. It will not stand alone; it will sit within that context. It is very important to remind ourselves of that reality.
	My right honourable friend the Home Secretary made a commitment in the oral Statement he made in another place on 2 February to publish a draft terrorism Bill for prelegislative scrutiny in the first half of next year. That is what we have just been talking about. We will have not just the Bill in due course; we will also have that opportunity for prelegislative scrutiny. The Bill will cover matters that go far wider than the three issues we have discussed and there will an opportunity for us to consider them in greater detail. On the basis of the presence of glorification in the manifesto, the presence in the UN resolution and the way in which the other place has now on three occasions said very clearly that it is not minded to agree with your Lordships' House, I believe this is the moment where we bow to the other place, confident, as we are, that we will have an opportunity to return to this in the way that the right reverend Prelate indicated when we will have the benefit of the advice on definition. We will look again to see whether that definition changes. If it changes—I make it clear that we do not know whether it will and we have talked about the difficulties inherent in that—it may well have an impact on the other provisions, and we would have to look again at them. I beg to move.
	Moved, That this House do not insist on its Amendments Nos. 5, 11, 15, 28, 31, 32 and 34; and do agree to Amendments Nos. 34A and 34B proposed by the Commons in lieu.—(Baroness Scotland of Asthal.)

Lord Goodhart: Clause 1(4) of the Bill as it emerged from the House of Commons provided in complex, convoluted language that glorifying terrorist acts should be treated as the encouragement of terrorism if that glorification is in terms which encourage people to emulate the glorified acts. That provision was removed and replaced by a much simpler and clearer definition of what is meant by "indirect encouragement" in Amendment No. 5, which did not contain the word "glorification".
	Amendment No. 5, as I recognise, has defects. They are defects which could have been, and could be, easily corrected by the House of Commons accepting the principle and sending back to us an improved version. The House of Commons has, however, chosen to put back the reference to glorification in Clause 1(4) and, indeed, everywhere else in the Bill. That, I believe, is entirely wrong. I believe it is wrong because the reference to glorification is not only unnecessary but useless. I cannot imagine any case in which a prosecution based on glorification would succeed, but a prosecution based simply on a law treating indirect encouragement as an offence would fail. There is here no loophole that needs to be filled.
	The Commons version saddles us with an elaborate, confusing and unnecessary provision. As the Joint Committee on Human Rights pointed out—in my view absolutely rightly—glorification, which is defined in Clause 20 as including any form of praise or celebration, wholly lacks the necessary legal certainty. But this use of the word "glorification" is worse than useless because it causes unnecessary damage to freedom of speech. It will lead to self-censorship. The definition of "terrorism", as the right reverend Prelate the Bishop of Oxford pointed out, is extraordinarily wide. It remains wide and we certainly cannot assume at this stage that it will be narrowed by any future legislation. It may be; it may not be.
	The present position is that someone wanting to write a book, an article, or a film or television script about the Easter Rising in Dublin in 1916, and doing so in a way that was sympathetic to the rising, might fear that that could be regarded as calling for a return of IRA terrorism in Northern Ireland as an uncompleted job. It may of course be unlikely that the Director of Public Prosecutions would give leave to prosecute. It may be unlikely that prosecution would lead—if there was a sensible jury on the case—to conviction. But the fear is there, and it has a chilling effect.
	The reference to glorification is also a matter of particular concern to the Muslim community of the United Kingdom and its groups. Many places where terrorist acts are now being carried out are part of the Islamic world; I am thinking in particular of the West Bank and Gaza, Iraq, Chechnya, and Kashmir. I wish to make it clear that I do not in any way support terrorism in any of these places. It is also true that, in some or most of these places, some terrorists have been guilty of actions which are repulsive to decent human beings, but people in this country must be free to debate the issues which give rise to terrorism there. It must not be a criminal offence to argue that at least some of the objectives, if not the methods, of terrorists in these places are in fact justified. The Government say that it is not the intention of the Bill to stop this argument, but the inclusion of references to glorification will make many people who, for example, support independence for Chechnya or the end of Israeli occupation of the West Bank fearful that in doing so they will be glorifying terrorism and committing an offence. "Glorification" will stifle debate that is not only legitimate but important in this country.
	Why is it that the Government are so obsessed with outlawing glorification? The answer can only be described as being to save face—their own and that of the Prime Minister. He said that glorification must be made a crime and it was put into the manifesto, along with condoning terrorism. "Condoning" was rather rapidly dropped and has not since reappeared, for reasons which are pretty obvious. It also became obvious that glorification, as a freestanding offence, would be in itself an absurdity. The definition of terrorism is so wide that it extends to the actions of Robin Hood and his merry men or the War of American Independence. If glorifying these were to be a crime it would make such radical organisations as the Daughters of the American Revolution criminal organisations. The Government therefore backed down half-way and made glorification a sub-species of encouragement instead of an independent species of its own. At that point, the Government should have recognised that all that was needed here was a simple offence of direct or indirect encouragement of terrorism, an offence which we accept as necessary and which we support. But the Government had become so committed to glorification that they had to stick it in.
	Your Lordships' House should stick to the decision to remove references to glorification. We now have the worst of both worlds: we have statutory provisions which add nothing to security but which will restrict freedom of speech. Your Lordships are offered three alternatives to the Motion that has been moved by the noble Baroness, Lady Scotland. One is the one in my name; the second is in the name of the noble and learned Lord, Lord Lloyd of Berwick. The differences between us are insignificant. It is only that he would accept the removal of Lords Amendments Nos. 15 and 32 and the inclusion of Commons Amendment No. 34A. Amendments Nos. 15 and 32 do not remove references to glorification, and we do not need to insist on them or to object to House of Commons Amendment No. 34A. That being so, if he wishes to press his Motion A2 to a vote, as I understand he does, I would beg leave to withdraw Motion A1 and support him.
	Motion A3 in the name of the noble Lord, Lord Kingsland, is another matter altogether. If it was adopted, it would remove the reference to glorification in Clause 1(4), but retain the references to glorification in Clauses 2(4), 3(9), 20(2) and 21. I cannot see the point of an amendment that would do that. Deleting one reference to glorification would annoy those who think that it should be in the Bill; leaving four other references in the Bill would annoy those who think that it should not be in the Bill. It appears to me that Motion A3 has no point and, unless the noble Lord, Lord Kingsland, is extremely persuasive, my recommendation to my noble friends would be to abstain if he was to move it following a defeat of an earlier Motion.
	In spite of the persuasive arguments of the noble Baroness, Lady Scotland, on this occasion your Lordships' House should send this matter back to the House of Commons for one further consideration, and we should not accept the government amendments that were reintroduced by the House of Commons.
	Moved, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its Amendments Nos. 5, 11, 15, 28, 31, 32 and 34; and do disagree with Amendments Nos. 34A and 34B proposed by the Commons in lieu.".—(Lord Goodhart.)

Lord Lloyd of Berwick: My Lords, I rise to support the Motion of the noble Lord, Lord Goodhart, and speak also to my Motion. The sole purpose of my Motion is to remove all references to glorification from the Bill.
	Clause 1 covers two forms of encouragement—direct encouragement and indirect encouragement. Direct encouragement is already covered by the existing law of incitement; I believe that now to be common ground on all sides. It may help the House if I give an example of how far the existing law of incitement goes. It may be that some of your Lordships have one of the devices—which I have not—that warns one of an approaching speed trap. In 1976, the manufacturers of such a device were prosecuted for advertising their products. It was said that they were inciting motorists to break the law by speeding. The defence was that they were not inciting anyone to do anything, certainly not to break the law—that was up to the driver. That defence was rejected. The manufacturers were duly convicted, and the conviction was upheld by a strong Court of Appeal.
	It is rather a good example of what I think the Government have in mind by indirect encouragement, yet it is covered by the existing law. There is nothing wrong with the existing law of incitement, and the reason why no one has been prosecuted for inciting terrorism is not because of some fault or deficiency in the law; it is quite simply because of a reluctance on the part of the police, for whatever reason, to prosecute. Instead of encouraging the police to use the existing law, the Government's response has been to make it easier, as they believe, for the prosecution to secure a conviction, by including indirect incitement in Clause 1. That is good as far as it goes. The trouble is that the Bill does not define what it means by indirect incitement. It may be that the Home Office lawyers or the draftsmen of the Bill found that task too difficult. Instead, all we have to go by is an example of a statement which is to be treated as falling within the scope of indirect incitement, namely glorification. To legislate by example is a most unusual way of proceeding. It is as if the Government were to say that they cannot define the offence with any degree of precision, but that this is the sort of thing they have in mind. That will not do for a criminal offence.
	On the last occasion the Bill was before this House, an amendment put down by the noble Lord, Lord Kingsland, attempted to cure that defect and improve the Bill by including a definition of indirect incitement. It was an olive branch, held out to the Government by him in all good faith. The Home Secretary did not accept that olive branch. Instead of adopting—and perhaps improving—the definition suggested by the noble Lord, he rejected it out of hand. What were his objections? I submit that they were trivial. First, the amendment had referred to the "listener" and one cannot listen to a placard. That was a good debating point, but we need something better than debating points if we are to reach consensus on this important matter. That defect could have been so easily cured.

Lord Lloyd of Berwick: My Lords, I do not contend that for one moment. I far prefer the amendment now suggested by the noble Lord, Lord Kingsland, and I wish the Home Secretary had accepted it when he had a chance to do so.
	The second argument was that we need glorification in the Bill, because indirect encouragement on its own is not sufficiently "strong and clear"—these are the words of the Home Secretary—to send out the required message. If indirect encouragement is not clear enough on its own, what is it doing in the Bill? Then it was said that if we were now to remove glorification from the Bill, that word having been included by the House of Commons, it would mean that glorification will, by implication, have been excluded from indirect incitement. To do the Home Secretary justice, he described that argument as "technical". It is worse than technical; it is simply scraping the barrel. Nobody has ever suggested that glorification cannot, given the facts of a particular case, amount to indirect—or even direct—incitement. Of course it can. What we object to is the use of glorification to define the parameters of the offence. That is the sticking point.
	Finally, the Prime Minister relied strongly on the fact that glorification is to be found in Security Council resolution 1624 of 14 September. That sounded, at first, like quite a strong point. It seemed to corroborate the Prime Minister's view. However, it loses some of its force when one appreciates that the United Kingdom tabled that resolution. I shall quote from the speech of President Bush at the full meeting of the Security Council:
	"Today we support a resolution sponsored by the United Kingdom that condemns the incitement of terrorist acts, and calls on all states to take appropriate steps to end such incitement. I want to thank the Prime Minister and his government for their hard work on this issue. The United States of America strongly supports the implementation of this resolution".
	I have tried to find out from the Foreign Office who first included a reference to glorification in the draft. It does not seem likely to have been the Algerians, the Brazilians, the Chinese, the Greeks, the Japanese, or the Russians and it certainly was not the French. The French objected to glorification and substituted their own word "apologie". I have been told by the Foreign Office that it was not the United Kingdom delegation that first suggested the inclusion of glorification. Of course, I accept what I have been told without reservation. Maybe it was the United States, but I cannot tell; I was not allowed to know. However, it is an odd coincidence that whoever suggested glorification should have chosen the very word that was included in the Labour Government's manifesto very shortly after the Prime Minister used the word at his press conference.
	These were the arguments in the House of Commons for disagreeing with Amendment No. 5, but neither the Prime Minister nor the Home Secretary dealt at all with the great objection to glorification as an offence, which is that it offends against the principle of legal certainty and, therefore, is incompatible with Article 10. They never mentioned that, yet that was the argument that was repeated over and again in this House. It was the basis on which the Joint Committee on Human Rights condemned "glorification". It was also the basis on which Clause 1 was questioned by Louise Arbour, the United Nations Commissioner for Human Rights, in her letter of 28 November last year.
	These are matters of great importance which deserve a proper answer if our amendment is not to be accepted. They cannot be brushed under the carpet. Therefore, I urge the House to stand firm now and not to wait until November next year. If we do so, we are not being soft on terrorism. We are anxious only to ensure that the law makes good sense and is enforceable.

Baroness Ramsay of Cartvale: My Lords, I refer the noble Lord to subsection (4)(b) and,
	"a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances",
	which is exactly what I said. Furthermore, any prosecutions would need to be approved by the DPP in cases of domestic terrorism or by the Attorney-General in cases of overseas terrorism. Only prosecutions that are in the public interest would be brought.
	Those who glorify terrorism will be prosecuted only if they do so in a way that encourages others to copy these acts in today's circumstances. I should add that on the criteria for the proscription of terrorist groups, which is another very important part of the Bill, specific safeguards are in place, including parliamentary approval subject to affirmative procedure, and appeal rights. The power of the Home Secretary to proscribe terrorist organisations is very far from being unfettered.
	I think it is very important for this House to send out a clear signal that no one, by carefully avoiding direct incitement, can continue to encourage others, especially the young, to commit terrorism. I support Motion A in the name of my noble friend, Lady Scotland.

Lord Judd: My Lords, the will of the Commons should ultimately prevail. That is a constitutional principle to which I strongly adhere. However, I cannot vote for a measure which I believe to be wrong, fundamentally flawed and, worst of all, counter-productive. I shall therefore abstain, but with considerable misgivings, because my own convictions on the matter before the House would have me voting against what I believe to be the misguided will of the majority in the Commons.
	There have been references to the Joint Committee on Human Rights. I am a member of that committee. We have reached and reported clear conclusions on the Government's proposals; they are there for all to read. Apart from the important issue of intent, our concerns centred on the vagueness of the glorification requirement, the breadth of the definition of terrorism, and the lack of any requirement to demonstrate as part of the offence the likelihood of terrorist offences being caused. We became convinced, and so we reported to both Houses, that to make the new offence compatible with Article 10 of the European Convention, it would be necessary to delete references to glorification, insert a more tightly drawn definition of terrorism, and insert into the definition of the offence requirements of intent and likelihood. It is particularly unconvincing to pursue the legislation unyieldingly when the Government have asked the noble Lord, Lord Carlile of Berriew, to review the definition of terrorism. We all await his findings.
	Successful law depends on a high degree of consensual support and identification with it across a wide cross-section of the population. The Muslim population of the United Kingdom is a significant part of our community: in London alone, it is 10 per cent of the population. The strength of opposition in the Muslim community to this clause would be difficult to overestimate. When the Government indicate that it is necessary to have this clause to send a signal—my noble friend Lady Ramsay, with her usual candour, has made the same point—members of the Muslim community understand this to be a signal to them, in particular. They believe that they are being warned, because of their anxieties about recent and, indeed, current events, that their views are not legitimate and should be suppressed. They may be right or they may be wrong in that, but that is the message which they interpret. This is not helping to win the most important and demanding battle of all if terrorism is to be overcome—the battle for hearts and minds.
	It has been argued that supporters of Nelson Mandela—I was one, as indeed I was of Eduardo Mondlane and others in the struggle for freedom in Mozambique, Angola and Guinea before the restoration of democracy in Portugal—would not be indicted by this clause. I simply do not understand that. After Sharpeville in 1960, the ANC abandoned non-violence and supported Spear of the Nation, its military wing committed to a strategy of sabotaging targets of economic and political importance.
	The activities of Spear of the Nation would clearly have fallen foul of Section 1 of the Terrorism Act 2000. Subsection (2) refers to "serious damage to property"—a technique that was deliberately deployed. Section 1 also refers to where,
	"the use or threat is designed to influence the government",
	and
	"is made for the purpose of advancing a political, religious or ideological cause".
	The apartheid regime denounced the struggle as terrorism. Others across the world, including, I am glad to say, some current Members of the Government and Cabinet, expressed support. That support was explicit and intentional. I recall speaking in the other place on the need to relate to the liberation movements. None of the Government's amendments, covering intent, recklessness or non-endorsement, would provide protection from imprisonment under Clause 1.
	There have been references to Nelson Mandela—I have made them myself—during our deliberations on this Bill. I hope that the House will therefore bear with me if I quote Nelson Mandela at his trial in 1964. He said:
	"I do not, however, deny that I planned sabotage. I did not plan it in a spirit of recklessness, nor because I have any love of violence. I planned it as a result of a calm and sober assessment of the political situation that had arisen after many years of tyranny, exploitation, and oppression of my people by the Whites. . . . I, and some colleagues, came to the conclusion that as violence in this country was inevitable, it would be unrealistic and wrong for African leaders to continue preaching peace and non-violence at a time when the Government met our peaceful demands with force. This conclusion was not easily arrived at. It was only when all else had failed, when all channels of peaceful protest had been barred to us, that the decision was made to embark on violent forms of political struggle, and to form Umkhonto we Sizwe. We did so not because we desired such a course, but solely because the Government had left us with no other choice".
	The Government argue—the Home Secretary argued it in his oral evidence to the Joint Committee on Human Rights—that while such resistance may have been justified on occasion in the past, such conditions no longer exist. After my years as rapporteur to the Parliamentary Assembly of the Council of Europe on the conflict in Chechnya, a country suffering grievously and which I visited nine times, I wish the world were as simple as the Home Secretary and his colleagues have portrayed it.
	I believe without qualification that it is wrong and totally unacceptable to target innocent civilians, whether this be by states or non-state organisations. I also believe that that absolute principle demands some caution on our part about our own credibility. Just read AC Grayling's latest book, Among the Dead Cities, dealing with the area bombing of Germany and Japan, or reflect on more recent events. The deliberate targeting of the innocent is not just wrong and wicked, it is usually counter-productive, whoever does it and for whatever cause.
	I do not believe that the rebels of Chechnya are right to be fighting, but I understand why many of them feel that they have no alternative. Just as I despise the atrocities against the innocent by some within their ranks, I admire the courage of others who themselves abhor such atrocities as much as any Member of this House. It would be tragic if, by our insensitivity and intransigence, we play into the hands of the extremists. Chechnya is not, by far, alone; there are other dictatorships and highly repressive regimes in the world today.
	Attacks on innocent civilians are something we should all condemn, but the definitions of terrorism we are considering today are not specifically about that.

Baroness Williams of Crosby: My Lords, the noble Lord, Lord Hurd, has spoken some extremely wise words both on the nature of manifestos and on the absolute necessity for certainty in the law, and as I understand from what was said by the noble Lord, Lord Kingsland, and my noble friend Lord Goodhart, the crucial aim here is to make sure that the law is unambiguous and clear. "Glorification" is a slippery word, as indicated in the letter from the United Nations Commissioner on Human Rights, Louise Arbor. It does not have a clear meaning and therefore, paradoxically, in addressing us the Minister made it plain that one of the things which would limit the number of prosecutions that might be brought under glorification was intent. That was put into the Bill after a very long argument in this House which, of course, came after the use of glorification, which in turn preceded the introduction of intent into the law. If intent is one of the things that narrow the area in which cases alleging glorification can be brought, it is rather strange that it should now be adduced as an argument for keeping the term "glorification".
	There is another factor which links what was said by the noble Lord, Lord Hurd, with the moving words of the noble Lord, Lord Tebbit. Quite simply, the glorification of what might be called terrorism lies deep in many cultural traditions, not only in the tradition of Islam. On Sundays I go to a church called the Church of St Joseph's and the English Martyrs. It glorifies terrorism. Those martyrs died under the reigns of Henry VIII and Queen Elizabeth I and therefore they are being glorified for what they did in defiance of the state at the time. As has been pointed out by my noble friend Lord Thomas, there is no limitation on how far back in time glorification may go. If I travel to Oxford I will see a monument which glorifies Archbishop Cranmer, who equally offended the Roman Catholic regime at the time.
	The problem here is that at some point most cultures glorify terrorism, and the noble Lord, Lord Tebbit, was absolutely right to remind us of very recent examples. Terrorism has been glorified in Northern Ireland and, in effect, is still being glorified on placards and posters. As the noble Lord, Lord Judd, rightly said, consider for a moment the impact on the Islamic community when it is picked out for a series of cases about glorification when it is perfectly clear that not many miles away similar acts of glorification leading, as the noble Lord, Lord Tebbit, reminded us, directly to deaths at violent hands have not been prosecuted. There has not been even an incentive or an instigation of prosecution in those cases. I for one have found it extraordinary that in the long period when the IRA refused to decommission its weapons no attempt was made to bring its members to justice on the grounds of their being involved in terrorism.
	We are walking on deeply ambiguous territory. It would be most dangerous, if we seriously believe that we have to curb terrorist actions—I agree with the noble Baroness, Lady Ramsay, that we need to do so—as a result of the cases brought for us to be seen to be very aware of terrorism in one quarter and completely unaware and not even wishing to be aware of terrorism in another. In the history of our relations with Northern Ireland we have a different attempt to deal with terrorism by compromise. With that history behind us, and indeed with us, we are almost the last country on earth that can now declare clearly that terrorism is a distinctly Muslim characteristic. Yet that is what is being read all too much into our debates and deliberations.
	Therefore I plead with the House, if it is serious about bringing cases that will be upheld on the basis of absolutely clear law, that the noble Lord, Lord Kingsland, is right: far more effective to have that law clear and unambiguous, even if fewer cases are brought to fail, than to play the game of appearing to pick out one culture of glorification over another leaving us with the general impression of a deeply built-in prejudice against the Islamic community.

Lord Lester of Herne Hill: My Lords, I want to make one or two points that have not yet been made. I agree with the general thrust of all the speeches that have been made. First, in dealing with the rest of the world, I am not aware that in the United States such an offence could possibly pass muster under the first amendment because of the strong constitutional guarantee of free speech. I am not aware that any other country party to the United Nations resolution has introduced such an offence. The only state I know of that had something similar was Spain. When Spain introduced that offence it was challenged before the constitutional court of Spain which decided that it was unconstitutional in the form in which it was expressed.
	We are therefore doing something unique—and uniquely bad—in lawmaking. When my friend and colleague the noble Lord, Lord Judd, and I and others on the Joint Committee on Human Rights visited Madrid recently—Spain is the European state that has faced even more terrorism than us, both from ETA and the Madrid bombings—to inquire about its counter-terrorist measures we had the privilege of meeting Ministers, the public prosecutor and senior judges and asking questions about their pattern of lawmaking. One of the questions was whether they considered it necessary in Spain in their counter-terrorist measures to detain people, for example, for up to 90 days without charge or by having the offence of glorified terrorism. The answer we received was, "No, we don't consider it necessary. What you do not need is more laws. What you do need is to make the existing laws work properly".
	That seems correct to me. We have a vast armoury in our criminal law of offences against public order of one kind or another; they cover all the disgraceful events of the recent demonstrations. They cover everything from incitement to murder to other, lesser crimes against public order. The amendments this House agreed upon would make the offence of direct and indirect encouragement of terrorism workable and effective. I believe that the inclusion of glorification will make the offence, if applied in any way at all, contrary to Article 10 of the European Convention on Human Rights and the Human Rights Act. I do not see the point in passing legislation that will lead to a result in our courts that none of us would wish to see.
	This is not the first time we have faced political speech crimes of this kind. As we all remember, we did so with regard to the offence of stirring up religious hatred, and on all sides of this House we managed to amend a manifesto Bill to make absolutely sure that freedom of speech would be effectively protected. In the other place, the opposition parties and Labour Back-Benchers joined together in a great alliance in order to copper-fasten those amendments. Unfortunately that could not be accomplished on this occasion, so the Bill has returned to this House. It is a manifesto Bill, as was the other one. On the face of it there is no specific guarantee of free expression of the kind we put into the other one. The other offences were much less serious—they were not concerned with terrorism—and yet we managed to get adequate safeguards. We do not have such safeguards in this Bill, and I believe it would not be contrary to the Salisbury convention, or any other convention of this House, to send it back again to the other place so that it could be improved. Then we could have something on the face of the Bill that would work in practice and not be counterproductive.

Lord Ahmed: My Lords, at Second Reading and in Committee I expressed my concerns on the glorification clauses. I am not satisfied today and wish, therefore, to speak. Much has been said about the Muslim community and Muslim youth. First, I refer to the placards. I understand that the demonstration organised last month was hijacked by a handful of criminals who held placards which had nothing to do with the Muslim community. That small group has been glorifying—if one wishes to use the word—the terrorists involved in 9/11; the placards also referred to the "Magnificent 4". I am not a lawyer but I understand that with regard to many of those placards some of the people could have been prosecuted under current legislation with incitement to murder and incitement to violence. I have not heard whether those people have been prosecuted.
	The noble Baroness, Lady Williams, spoke of martyrs. There are references in all holy books, in particular the Koran, to those who have sacrificed their lives in the name of God. Where there are specific places where people have been oppressed, their rights abused, raped and tortured, it is made compulsory to rescue those people. In the Koran, such people who die are then martyrs. With regard to Kashmir, Amnesty International Physicians for Human Rights and Asia Watch have reported on abuses of human rights. Although there have been United Nations resolutions on Kashmir the United Nations has taken no action against the state responsible for those abuses of human rights. The international community called the Kashmiris Kashmiri militants. But in the past 12 months they have suddenly become Kashmiri terrorists. If Parliament passes the provision regarding the glorification of those involved with terrorism in the past and in the future, those of us who have supported people struggling for the right of self determination could also fall foul of such legislation.
	More importantly, I do not think that the Muslim community is concerned for one minute about legislation to prosecute those responsible for the terrorist attacks on 7 and 21 July but it is concerned about the definition expanding to other areas. We have no legislation to stop governments from supporting tyrants, as in Uzbekistan, who can kill their own civilians. Governments can freely support those types of regimes. Regimes such as that in Uzbekistan could classify the good people who try to resist them, or who try to escape from such tyrannies, as glorifying terrorism.
	I have heard nothing that will change my mind. If the provision is put to a vote, I am afraid that I will have to vote against the glorification measure.

Lord Stoddart of Swindon: My Lords, most of what I wanted to say has already been said, and probably more elegantly than I would have said it. However, I want to make two short points that have not been made. The noble Baroness, Lady Ramsay, correctly said that there could be no prosecutions under this legislation without the consent of the Attorney-General. That is right. I am worried about what leads up to the question of whether there should be a prosecution and who will define the new offence of glorification. In the first place it will be the police. They will have to decide whether somebody should be put under arrest, questioned and held.
	What worries me is legislation creep. We have had some very stark examples of what can happen when we have not defined things properly just lately. For example, we passed an Act that prohibited assembly without permission within 916 yards of Parliament. Ostensibly that was to deal with terrorism, but I think that it was probably intended to get rid of the shacks which are just outside but which are still there in spite of the legislation. But what happened? A woman decided that she was so concerned about the Iraq war and the British dead that she and a colleague decided to announce by the Cenotaph the names of the British soldiers who had been killed. Before she had got very far down that unfortunately very long list, nine policemen descended on her, arrested her, told her she was committing an offence, took her to a police station, charged her and she was taken to court. That is the sort of thing that worries me—the fear that the police will overstretch themselves, as the north Wales police have, I believe, overstretched themselves in wanting to prosecute the Prime Minister for saying some derogatory things about the Welsh. In voting on these amendments, we ought to keep that in mind.
	The only other point I want to make is on the manifesto commitments. Of course, we all want to respect manifesto commitments, don't we? Some people, like the Minister, think that they are sacrosanct, but I wonder whether they really are. I remember that in the Labour manifesto there was a commitment on smoking. The manifesto commitment was that smoking would be allowed in bars where there was no eating and that private clubs would be exempt. I am quite sure that noble Lords will all have read every word of the Labour manifesto and they will know that what I have said is true. But, unfortunately, manifesto commitments are not always taken in their complete context. On 14 February the House of Commons decided that the manifesto commitment was not good enough—that what the people had voted for was not good enough and that the people had to be corrected. They therefore decided to amend that manifesto commitment to say that there should be no smoking in any enclosed public space whether there was eating or not and that even private clubs would not be able to decide whether or not they should allow smoking.
	Manifesto commitments are not sacrosanct—they can be altered. This House has altered them and I hope that it will do so again today without being accused of insulting the electorate by not keeping completely in line with a manifesto commitment made by the Labour Party at the last election.

Lord Thomas of Gresford: My Lords, it is necessary to look briefly at how "glorification" has come to be in this legislation. It is defined in Clause 21 in these terms:
	"'glorification' includes any form of praise or celebration".
	Notice that it does not say "comprises", but "includes", which suggests that glorification is wider than any form of praise or celebration. That in itself indicates how vague the concept is. It appeared in the manifesto, as noble Lords have said. The Prime Minister, in his press conference in August, said that he was going to introduce anti-terrorism legislation to include an offence of condoning or glorifying terrorism anywhere—not just in the United Kingdom. So you have a vague concept to apply to "anywhere". I have already pointed out that the Bill refers to acts of terrorism—past, future or generally. Nothing could be broader or wider than the way it has been put.
	This House was able to introduce amendments to try to tighten it up. We had already received a concession from the Government that intention was to be part of the glorification offence. This was the way in which the Home Secretary defined the offence on 15 February when he was considering our amendments:
	"The offence will be committed only if someone encourages terrorism, whether directly or indirectly, including through the glorification of terrorism, intending to encourage it or knowingly taking an unreasonable risk that they will encourage it".—[Official Report, Commons, 15/2/06; col. 1439.]
	Your Lordships will notice again the word "including" through the glorification of terrorism and not "comprising". "Comprises" appears in the amendment of the noble Lord, Lord Kingsland, Motion A3, which is an attempt to give some boundaries to that particular concept.
	In answering questions in another place on the same day, the Prime Minister said:
	"The term 'glorification' is easily understood by members of the public and by juries".—[Official Report, Commons, 15/2/06; col. 1415.]
	The noble Lord, Lord Grabiner, has made the same point today. I do not believe it is true at all. The Prime Minister said that by weakening our law on terrorism at this time from what was proposed, we would send the wrong signal to the whole of the outside world. He said:
	"Let us be quite clear that this is not only about the Conservatives and the Liberal Democrats combining to take 'glorification' out from the offence; it is also about taking out any reference to glorification from the list of proscribed groups. That would mean that we could not proscribe people who were glorifying terrorism, unless it could be proved that they were actively inciting terrorist acts".—[Official Report, Commons, 15/2/06; col. 1416.]
	What he said suggests that he had not yet grasped the introduction into this legislation of the concept of intent or recklessness, of which the Home Secretary was talking later in the day in that debate. If the Prime Minister does not understand the ambit of the offence as it now appears in the Bill, what hope is there that a jury at some subsequent stage will understand how widely it is expressed?
	The noble Lord, Lord Hurd, said that the criminal law is not about giving signals or sending messages. It is setting a firm boundary by which people regulate their conduct, knowing that if they step over it they will open themselves up to, in this case, seven years' imprisonment. That is what it should be to regulate conduct. Vague expressions that have no meaning in themselves and that extend worldwide, throughout history and into the future, do not set a firm boundary. I urge your Lordships to support the amendments that have been tabled to the Government's Motion.

Baroness Scotland of Asthal: My Lords, I think that we can say without fear of contradiction that we have had yet again a comprehensive discussion of glorification. I confess that I wished that we could perhaps have had a slightly different hue to the debate, but I am refreshed that no new ideas seem to have come forward. We have made some clear points throughout the debate as to where the differences lie between the various parties. I absolutely understand, for example, the anxiety of those such as the noble Lord, Lord Glentoran, who say that they are fearful that glorification will not assist but may exacerbate. I hear, too, the concerns of the noble Lords, Lord Lester and Lord Goodhart, and the noble and learned Lord, Lord Lloyd, about compatibility with the ECHR and with our human rights legislation. We have concluded that these provisions are compatible. Of course, it will be a matter for the courts to determine in due course whether we are right or wrong about that, but our understanding is that they are compliant.
	I say to the noble Baroness, Lady Williams, that there is a marked distinction to be drawn with the martyrs, who were not terrorists but gave up their lives because of their faith. St Thomas More, St Stephen and others did not engage in acts of aggression against others, consistent with their faith. It would be unfortunate if we were to conflate the two. In relation to the comments made by the noble Lord, Lord Hurd, I agree that we have to tread carefully and tiptoe into this area, and we must do so judiciously and proportionately. That is why we have put in place safeguards in relation to the DPP and the Attorney-General. They are robust safeguards that will not be easily overturned.
	I warmly welcome the openness of mind of the noble Lord, Lord Tebbit, in demonstrating in his usual way that he is persuadable on issues. I reassure him that these provisions are of universal application. Therefore, anyone who contravenes the provisions of the Act, if it comes onto the statute book, will be liable to prosecution if the facts complained of comply with the Act. It would be wrong for us to deal with specifics.

Resolved in the affirmative, and amendment agreed to accordingly.
	[Amendment A3 not moved.]
	On Question, Motion A, as amended, agreed to.
	MOTION B
	22 Clause 3, page 5, line 17, leave out ", in the opinion of the constable giving it,"
	The Commons disagree to this Amendment for the following reason—
	22A Because the Commons do not consider that it is appropriate that approval of a judge be required before a notice can be served under clause 3
	23 Page 5, line 27, at end insert—
	"(3A) A notice under subsection (3) shall not be given unless it has been approved by an appropriate judge.
	(3B) An appropriate judge shall not grant an application for approval under subsection (3A) unless he is satisfied, on the evidence before him, that the statement or the article or record is one to which subsection (1) applies.
	(3C) The Secretary of State may make regulations relating to applications made under subsection (3A).
	(3D) Regulations made under subsection (3C)—
	(a) may provide for an application to be heard without notice to the relevant person and in his absence;
	(b) shall provide that the relevant person and other persons having an interest in the matter may apply to a court for the revocation of the notice.
	(3E) The first regulations made under subsection (3C) may not be made unless a draft of the statutory instrument containing the regulations has been laid before and approved by a resolution of each House of Parliament.
	(3F) Other regulations made under subsection (3C) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament."
	The Commons disagree to this Amendment for the following reason—
	23A Because the Commons do not consider that it is appropriate that approval of a judge be required before a notice can be served under clause 3
	29 Page 6, line 37, at end insert—
	"( ) In this section "appropriate judge" means—
	(a) in England and Wales, a circuit judge or a judge of the High Court;
	(b) in Scotland, a sheriff or a judge of the High Court of Judiciary;
	(c) in Northern Ireland, a High Court judge."
	The Commons disagree to this Amendment for the following reason—
	29A Because the Commons do not consider that it is appropriate that approval of a judge be required before a notice can be served under clause 3

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendments Nos. 22, 23 and 29, to which the Commons have disagreed for their reasons 22A, 23A and 29A. In relation to Motion B, perhaps your Lordships could give me a moment as I know that I must be precise in the terminology that I use in moving this Motion.
	Motion B covers the Lords Amendments Nos. 22, 23 and 29. In relation to these amendments, I would invite your Lordships to accept the decision of the other place by accepting them and rejecting those which are lobbied in opposition.
	These amendments relate to the body of Clause 3. This clause extends the offences set out in Clauses 1 and 2—namely, encouragement to terrorism and dissemination of terrorist publications—to the Internet. I am sure that the House has no disagreement with the principle of the clause that knowingly encouraging terrorism through the Internet should be a crime. We have heard often of the kind of radical material that might be available through the world wide web. However, in applying the offences in Clauses 1 and 2 to the Internet we had to face one significant problem, which is the knowledge of the offence. It is possible, through certain bulletin-board style websites, to run a website and be totally unaware of the content posted onto it. Clause 3 provides for a notice and take-down procedure which enables the police to notify those previously unaware of the offending material and to request them to remove it from public view. If they choose not to do so, they will be deemed to have endorsed the material and will lose the chance, if prosecuted under Clauses 1 or 2, to use the defence of non-endorsement set out therein.
	There are a number of things that it is prudent for us to remember. First, refusal to obey a notice is not an offence in itself. The legal effect of refusing to comply with a notice is merely to set out that the statutory defences in Clauses 1 and 2 of non-endorsement are not open to them. Secondly, even if an individual fails to comply with a notice, the prosecution will still have to prove that he intended to encourage terrorism, or make information of assistance available to terrorists, or was subjectively reckless about that. Those are significant burdens on the prosecution. I repeat that failure to comply with a notice simply removes one possible defence. The substantive offence, with all of its elements, still has to be proved.
	The intention behind Clause 3 was, therefore, to provide a method by which webmasters could be made aware of the content on their websites, while ensuring that they could not claim that they were not aware of it, or did not endorse it, if later prosecuted. The Internet is a fast moving medium. This is a fact of which we are all only too well aware. In the field of removal of child pornography, in which the UK has taken great strides forward in the past five years, it is accepted that offensive material can change location multiple times in one day. Those shifts in location may be across computer servers, but also across countries and continents. Locating that material and ensuring that it is removed is therefore a really difficult job. It was therefore proposed—and accepted by another place—that a police constable could be capable of issuing a notice to the person responsible for disseminating or publishing content considered to be capable of prosecution under Clauses 1 or 2.
	The amendments that your Lordships made at Third Reading drastically changed the effect of that clause. They stipulated, ostensibly on the grounds of protection of freedom of speech, that only a judicial authority should be capable of issuing such a notice. What is more, they stipulated that the judicial authority should be a circuit judge, or judge of the High Court in England and Wales, or equivalent level judges in Scotland or Northern Ireland.
	The argument advanced for such a change was that it would not be in the interest of a service provider or webmaster to ignore a notice, and that a police constable was not an appropriate authority to issue such a notice, given the effect on freedom of speech. Although I can understand some of those concerns, we believe that they are not founded in fact.
	First, we reject the suggestion that Internet service providers will simply unthinkingly always comply with a notice, even if it has been inappropriately issued. The noble Lord, Lord Goodhart, has referred to that in the past as the "chilling effect". We do not believe that such notices will be issued in cases where they should not be, but in that unlikely eventuality, we think it does a great disservice to Internet service providers to assume that in such a competitive industry they would be quite so negligent of the interests of their customers.
	Secondly, we are working to produce guidance on the issue of notices under Clause 3 with a working group comprising the police and Crown Prosecution Service, as well as other interested parties. It is certain that a clearly stated protocol will exist under which notices will be issued. It will not, therefore, be possible for a notice to be issued without serious consideration. Notices will not be issued just on the whim of a police constable.
	In another place, my right honourable friend Hazel Blears, was able to give a little more information on this. The issue of notices under Clause 3 will use the current Special Branch communications data single point of contact (SPoC) procedures. An officer in the anti-terrorism branch of the police service who carries out such duties is known as the single point of contact and deals regularly with Internet service providers and the communications industry. Our relationship with the communications industry does not focus simply on terrorism, and there are a range of issues on which the police must foster good relations.
	The accredited single point of contact officers will ensure efficiency and good practice in their management of relationships. They will use only practical and lawful requirements for the acquisition of communications data. They will provide a guardian and gatekeeper function to minimise the burdens on the Internet providers so that a huge amount of bureaucracy is not created. I know that the noble Lord was particularly concerned about that when we discussed this the last time. At the same time, however, they will ensure that there is access to the information that could help us to tackle such problems. This has been agreed by the Internet industry. It is clear that it will not be appropriate for any police constable to issue a notice; notices will be issued by specialised personnel.
	The special branch officers who, as I said, are properly accredited, would assess whether it was necessary to get the information from the service providers, and they would try to assure those providers and work with them. I am assured that the officers have all been on a proper course of training. Details of all the accredited individuals are available to the service providers, so that they can be reassured about the person with whom they are dealing. We are considering the appropriate level for the authorisation of the power. In many areas, powers are authorised at superintendent level. We have not taken a final decision about that, but reading across from the regulation of investigatory powers legislation, that appears to us to be the appropriate level of seniority.
	Thirdly, as we have previously discussed, these amendments were not advocated by the Internet industry. It has been clear in our discussions with the industry through its trade body, the Internet Service Providers' Association, that it welcomes the setting out of a clear notice and take-down model in this legislation. It has had several concerns which we have sought to address and which were discussed in another place. However, at no time did the Internet industry ask for the changes which these amendments make, as the noble Lord, Lord Goodhart, who has frequently prayed in aid the views of the industry at earlier stages of the Bill, has acknowledged; he was unaware of where we were precisely. I say that because it is important that we understand that, in this case, we are all on the same road—at least, I hope that we are.
	As I have already highlighted at length, there is also no immediate penalty for failing to comply with a notice issued. Any prosecution of an offence under, for example, Clause 1, which involved the Internet, will require the proof of either an intention to encourage terrorism or a subjective recklessness in publishing a statement that could have that effect. In addition, we have the consent of the DPP. For this reason, we believe it would be wholly inappropriate to seek to involve a judge in the issue of such notices. I am very concerned that to agree with the amendments made by your Lordships would remove all effectiveness from Clauses 1 and 2 in relation to the Internet. That means that an individual would clearly be prosecuted for encouraging terrorism on a street corner, but not for doing so from his computer in his bedsit, from which he can reach a far wider audience of disaffected individuals. A requirement for judicial authorisation would add in time and delay when our aim must surely be to get terrorist-related material removed as soon as possible.
	We have some straightforward provisions that would notify providers that material was unacceptable and that they should remove it, and tell them that they could choose to ignore the notice but that, if they did so, they could not avail themselves of the statutory defence that they did not know or endorse it. The Members of the other place took the view that your Lordships' amendments would elevate this matter to too great a level by seeking to have judicial scrutiny of the process. The Internet service providers have not requested that; they are happy with this process and feel that it will help to reduce the amount of such material available. This is a practical and common-sense provision.
	Those Lordships who have read the Hansard of another place will have seen that there was a very full and well informed debate on this matter. The points which your Lordships made were fully covered and considered. At the end of the debate, the Members of another place voted not to accept your Lordships' amendments. They did so by the very clear majority of 64—a figure which, incidentally, is 64 times the size of the majority by which your Lordships originally passed these amendments.
	The elected House has clearly spoken on this occasion. I hope that their voice will find greater resonance on this group of amendments than it did on the last. I beg to move.

Lord Goodhart: rose to move, as an amendment to Motion B, leave out from "House" to end and insert "do insist on its Amendments 22, 23 and 29."

Baroness Williams of Crosby: My Lords, I am sure there are many who will feel a sense of weariness at the thought of having to pick up the cudgels yet again to try to protect freedom of speech and expression on behalf of a brand new technology, namely Internet service providers. The point made by my noble friend is absolutely right; we have recently seen the willingness of Google, probably the most powerful Internet system in the world, to accept restrictions on its own ability to transmit freely what is thought to be factual truth in order to complete a contract with the Republic of China.
	Those with long memories will recall that at a much earlier stage, when the BBC was attempting to get a contract for news in China, it was told that to do so it had to accept edited Internet service provision, and it was unable to do that because it had agreed to transmit a terrifying film, "The Dying Room", about what happened to young girl infants in China. That was found so reprehensible by the Chinese authorities that they made it plain that the BBC would not be permitted to have either Internet or other positions in the Republic of China. Instead they moved to a Star system, within the empire of Mr Rupert Murdoch.
	We find yet again that this newest of technologies is threatened by attempts to limit its freedom of expression. To offset that, there has to be a major legislative input to remind people, all the time, of the importance of the right to freedom of expression, not least to this new and powerful technology. As your Lordships will be well aware, it is a technology that particularly appeals to people under the age of 35 much more than traditional newspapers or broadcasts, so it is of the most significant importance that its freedom should be protected.
	My concern about the group of amendments before us now, and the decision of another place to reject them, relates to something that the noble Lord, Lord Stoddart of Swindon, said earlier in our debate on the amount of responsibility which is now being put on the police, and the question of whether they are properly trained for that set of responsibilities. If one looks over recent legislation, the degree to which more and more discretion is placed on the police in one area after another is actually rather frightening. I say that with considerable respect for the police forces of this country, but respect alone will not offset these growing responsibilities which they are not fully qualified to meet. Making a decision about whether some sort of announcement or statement on an Internet service provider's network could be described as, to use the words of the Bill, "an unlawful terrorist act" is a delicate decision. Once again, we in this House are looking at what was called, in debate on early amendments to this Bill, the chilling effect.
	You are a young constable, who has had rather limited training. You know that you will not be faulted or rebuked if you get it wrong in the direction of bringing an order when the case for it is weak. You will unquestionably be rebuked if you do not bring an order when it is felt, later, that the case for it was strong. The weight of evidence is almost entirely on one side, and it would encourage the police—to use the earlier remarks of the noble Lord, Lord Stoddart—to somewhat overstep the mark. I repeat that that is not a criticism of the police, but rather a statement about the amount of responsibility we are now placing on an individual police constable.
	Those orders carry with them, as my noble friend Lord Goodhart said, the possibility of a heavy penalty if it is assumed that the person has endorsed the statement because he has not taken action to wipe them off the screen or tell them to be stopped within two working days—a pretty short period by almost any measure. That then means that that whole set of information will be banished from the public stage. The sum effect is a heavy responsibility, and one that in some cases will add up to a substantial incursion of freedom of expression and freedom of information.
	My noble friend has tried to deal with this by bringing another voice into the decision-making—a judge who could make a rapid decision on the basis of the information put before him, as he does in an arrest warrant. Essentially, the main point is that we have another judgment here, another view and opinion, on top of that of the single police constable who otherwise can make the decision on his own. This is a troubling area, where the borders of freedom of expression will be pushed back quite a long way by the decision of the police to play it safe. We have to set up this second voice against that, with perhaps more experience and knowledge of the way in which the law works than that of a single police constable, however well intentioned. Therefore, I strongly support these amendments.

Baroness Scotland of Asthal: My Lords, I understand the proper concerns of the noble Baroness and the noble Lord, Lord Goodhart, but I really feel in this instance that they are not well founded. The Special Branch officers who have been entrusted with this work have already been doing it with the Internet industry in a challenging area, and I dispute what the noble Lord says—that the service providers' being content with this demonstrates why they cannot be entrusted. With respect, that is a perverse argument because of what in fact has happened.
	We can take pornography as an example. As noble Lords know, there are pornographic and other sites where one has to differentiate between the legitimate pornography—if that is not a contradiction in terms—and what is illegitimate and unlawful, and remove the latter from the net, particularly with paedophilic material. We have demonstrated that the delicate balance between what is lawful and permissible and what is not has had to be carefully policed in that area, so we know that the Special Branch officers who are entrusted with this work are trusted to make those judgments by the Internet industry, too. It is not something that is done injudiciously or in a cavalier manner; it is done carefully by those who are trained and who develop an appropriate level of expertise.
	I have never stinted for one minute in giving my total admiration to the judiciary, but a practitioner who deals with material on a day-to-day basis may have a little more experience than a judge who will deal with this from time to time. If we are asking someone to chase things around the Internet rapidly, it is unrealistic and unfair to expect the judicial overseer to be able to do it with the acuity that a honed practitioner does on a daily basis.
	There are other opportunities, but this is simply not a practical way forward. We understand everything that people have said about freedom of speech. It is absolutely important—that goes into the training and into the balance—but the protocols we have put forward meet the needs of the case. I invite noble Lords to agree with the Commons, and reject the amendments now advocated and which went to the other place before.

Resolved in the negative, and amendment disagreed to accordingly.
	On Question, Motion B agreed to.
	MOTION C
	25 Clause 3, page 6, line 17, leave out "capable of being" and insert "likely to be"
	26 Page 6, line 21, leave out "capable of being" and insert "likely to be"
	27 Page 6, line 23, leave out "capable of being" and insert "likely to be"
	The Commons disagree to Lords Amendments Nos. 25, 26 and 27, but propose Amendments 27A, 27B, 27C, 27D and 27E to the Bill, and to the words restored to the Bill by the Commons' disagreement with Lords Amendment No. 28, in lieu—
	27A Page 6, line 17, leave out "capable of being understood" and insert "likely to be understood, by any one or more of the persons to whom it has or may become available, "
	27B Page 6, line 21, leave out "capable of being useful" and insert "likely to be useful to any one or more of those persons"
	27C Page 6, line 23, leave out "capable of being understood" and insert "likely to be understood by any one or more of those persons"
	27D Page 6, line 25, leave out "capable of being" and insert "likely to be"
	27E Page 6, line 27, leave out "capable of being" and insert "likely to be"

Lord Judd: I warmly endorse the noble Lord's remarks. I have put my name to some of his amendments. He has put the case comprehensively and well. I wish to underline two issues. The first concerns the issue of byways open to all traffic, colloquially known as BOATs. It is difficult to overstate the problem we now face. I am well acquainted with the national parks. We are aware that for Exmoor National Park Authority alone, 36 applications to reclassify are pending. In the past year, in one part of the Yorkshire Dales alone, 30 footpaths and bridleways have been targeted for upgrade to BOATs by the Trail Riders Fellowship. In the Sussex part of the South Downs, an existing area of outstanding natural beauty, there are nearly 80 byway claims, many deposited in the past few months. I always make a firm principle of the importance of no retrospection in British legislation. It is a cornerstone of the kind of legal system we want to have in our society. However, I believe that there has been an abuse here. It has been clear since the consultation process began that there were to be new provisions. There has been a tremendous amount of sheer naked opportunism in seeking to use the intervening period before legislation becomes applicable to rush in those applications. In that context, the spirit of retrospection is not bridged if one fits a cut-off date, which is the time when any reasonable person can be clear that the new situation will exist. I am somewhat distressed—I hope that I do not use the wrong word—that so many people could be so opportunistic.
	There is an overlap between those who want to seize the interim period to put in their claims and the needs of disabled drivers which have come more into focus in recent times. There is an issue here. I should like to see access to the countryside all the time being improved for the disabled. However, I am a little fearful that some shenanigans are going on: that the disabled are being used in an unacceptable way to open up a situation. That is deplorable. It might be helpful to draw attention to some of the opportunities which exist. While those who utilise electric buggies to access these ways are excluded from prosecution from driving on restricted byways, the position is unclear as regards specially adapted four-wheel drive or motorcycle use. The Minister's observations would be useful.
	In the meantime, there is a need to encourage highways authorities to recognise the needs of disabled vehicular users as part of their duty to prepare a "rights of way improvement plan" which could assess whether some routes would be appropriate for creating agreements in order to improve disabled vehicular access. There may also be the opportunity to improve permissive access for disabled vehicles through negotiations with public landowners—for example, the Forestry Commission, the Ministry of Defence and utility companies—which have experience of negotiating restricted access to sites which they manage.
	While national park authorities own only a small amount of land, they also have an impressive track record of making improvements to assist with rambles and access for the disabled. The Disabled Ramblers charity, which organises challenging rambles using a wide variety of mobility aids ranging from electrically powered pavement buggies, scooters, wheelchairs and, in some cases, manually propelled wheelchairs, has a 2006 programme that focuses on and encompasses most of the national parks.
	Specific partnership initiatives include Exmoor National Park Authority's and the National Trust's three "Easy Access" sites in the park. These are properly constructed, fairly level footpaths in beautiful locations for use by disabled people—those with wheelchairs, buggies and so on.
	Another initiative is the Black Mountains Cross Border Demonstration Project of which the Brecon Beacons National Park Authority is a partner. This has specifically targeted the rugged landscape of the Black Mountains, improving access points and providing information to people with a varying range of disabilities.
	The opportunities are there and they need to be strengthened. There may be room for clarification by the Minister on the specially adapted four-wheel drive vehicle. In supporting the noble Lord, I emphasise that there has been a despicable amount of opportunism. We need to be firm about that opportunism. The Government have accepted the principle we pursue. The only difference relates to the date on which the regulations should become operative.

Viscount Bridgeman: I support my noble friends on our Front Bench and the noble Lord, Lord Bradshaw, on Amendment No. 318A. The subject featured last week in "The Archers" and, if nothing else, that reflects the concern the issue has raised in the countryside.
	A number of respected off-road bodies have given undertakings, I am sure in good faith, that their members will behave responsibly on the BOATs for which they make application. But we must be realistic. We cannot expect there to be a marshal from one of these bodies posted at every threatened green lane site to ask if the rider can produce his membership card. The reply that they would get defies imagination. The fact is there is a vast body of opportunistic, off-roaders who will have nothing to do with any of these organisations.
	I am aware that the green lanes group and others would have preferred no exemptions from the measures proposed in the Bill and that would have avoided the disadvantages of arbitrary dates. Applications separated by only one day in the past would have received radically different treatments. However, I accept that the bodies representing the trail riders and off-roaders would feel a certain sense of injustice, real or imagined, if that line was adopted. Therefore, with some reservations I accept the spirit of government Amendment No. 318. My reservations are that Amendment No. 318 does not go far enough back in setting a cut-off date. However, Amendment No. 318A, in the names in the names of my noble friends Lady Byford and the Duke of Montrose, and the noble Lords, Lord Bradshaw and Lord Berkeley, goes further in taking the date as proposed in Clause 2(3)(a) in Amendment No. 318 back from 19 May 2005 to 9 December 2003—the date of publication of the consultation paper to which the noble Lord, Lord Judd, referred.
	I hope the Committee will appreciate that this is not simply an attempt to get, as it were, a larger slice of the cake. There is no doubt that certain interests deliberately flooded local authorities with applications once the discussion document was published so as to get under the wire, as it were. I understand that 1,000 applications were put in between the two dates. The date of 9 December 2003 has a logic—and I venture to say an equitable logic—behind it, and I very much support it.

Viscount Falkland: This may be an opportune moment for me to speak to my Amendment No. 310ZB in this group and to Amendment No. 369 in the name of the noble Lord, Lord Jopling, who unhappily is unable to be here. That is unhappy for me but happy for him as I understand that he is lecturing on a cruise ship in the Pacific.
	I discussed with the noble Lord, Lord Jopling, how I should approach his amendment, with which I have great sympathy. I have been approached by many noble Lords in the Lobbies today and yesterday who said that they were looking forward to opposing what they thought would be my spirited defence of off-road motor cycling. I am afraid that they will be disappointed. In principle I have great sympathy with the measure, as does the noble Lord, Lord Jopling. After all, the noble Lord, Lord Jopling, represented with distinction over many years a rural constituency with countryside of great natural beauty. He and I have both been connected with motor cycle activities that take place within Parliament and elsewhere. The noble Lord, Lord Jopling, has been concerned more specifically with sporting events, which gives him a greater interest in off-road motor cycle competitions. However, it may come as no surprise to the Committee that neither of us is a recreational off-road motor cyclist. Those who ride off-road motor cycles are generally young—you have to be. When we learnt to ride motor cycles—in my case that was over 50 years ago, and I think that is probably the case with the noble Lord, Lord Jopling—there were no such things as off-road motor cycles. I have just been reminded that there were machines called farm bikes, which are now called cannabilised motor cycles, which were converted to go, at some risk to the rider, across rough countryside. Nowadays, the motor cycle industry caters for a large customer base of young people who want to ride off road and provides them with technologically very sophisticated machines with which to do so. With the spending power that is available to them they will buy those machines and use them. There is a growing problem in that regard. The perception is that a great number of young people ride irresponsibly and dangerously over our beautiful countryside. In fact, it is a small minority. As always, a small group of people destroy the rights and pleasures of others. There is no denying that some ride in a way that shows little consideration for other users of byways and green lanes and areas used by walkers, horse riders and others.
	These amendments seek only to mitigate the rather drastic measure of cutting the time during which correct and proper applications can be made for the right to use these byways. It was considered in 2000 that it would take 20 years to create a proper map and arrive at a responsible and proper sharing out of our countryside among users. The public and other user groups such as walkers, ramblers and so on can be forgiven for having perceptions that are not entirely realistic. Their perception is that the main culprits in this regard are motor cyclists and other vehicle users. They certainly have a high profile.
	We accept that public opinion will hold sway, that the Government represent public opinion and that therefore they are introducing legislation which effectively curtails the activities not only of the small minority who ride irresponsibly, noisily and dangerously and cause great damage but also of responsible, law-abiding people. We are asking for a 12-month delay after Royal Assent to get some of the outstanding claims settled. My amendment asks the Government to suspend rather than extinguish rights. The relevant powers already exist, certainly as regards motor cyclists, to take action where damage and nuisance are caused. But nothing has happened. It is extremely difficult to enforce the law in this area. I see nothing in the new regime which will change that situation. In fact, it may make it even worse because the responsible user groups and clubs which usually comprise mainly young but sometimes older people who ride these machines will obey the law. However, those who are not minded to obey the law will continue to behave as they always have done, and the activity will grow.
	How will these activities in the countryside be policed? To do that effectively a great deal of money will have to be spent creating a police force somewhat like the police support system that we have in your Lordships' House, with police officers equipped with motor cycles to chase people. It would be rather like the Wild West with police officers forming posses to chase those causing damage in the countryside, thereby compounding the whole problem. However, that is the situation in which we shall find ourselves. For that reason my amendment asks the Government to consider suspension rather than the extinguishing of rights.
	Other byway and green lane users will be affected by the legislation. Some people use vehicles, whether two-wheel or four-wheel, to do many other things than jump over hillocks or perform acrobatics in the countryside. There are those who go fishing, hang-gliding, or bird-watching—all these people use vehicles to arrive at a place where they can start to pursue their leisure activity. Effectively, it will be easier to police those people than it will be to police those on two wheels who are on the Ridgeway or in peak areas of Britain. But it would be easy for an over-zealous policeman—heaven forbid that one may exist—to stop somebody going up a green lane with his car and fishing tackle, or to go up a lane bird-watching than it will be to catch those who the public, and the Government presumably, now see as the main offenders.
	That is the situation that I would like to put before your Lordships at this stage. I spoke to the noble Lord, Lord Jopling, and there is no intention to divide the House at any stage on our amendments. We just seek to bring a sense of reality into the situation and to point out that the countryside is becoming more and more a place for recreation and relaxation. My noble friend Lord Bradshaw referred to the historical origins of these rights of way and byways. He is quite right; they go back hundreds of years. They were mostly for the transporting of agricultural workers and their tools and produce, who used them to go from villages to areas where they had to work. They were useful and were encouraged by landowners because that was the way the countryside then worked.
	We now live in a different world, a world where everyone feels so empowered, which they have every right to be in a democracy. After all, that is what we aim for in a democracy—that everybody should have more rights, more ability and more freedoms. But unfortunately there are too many people who abuse their freedoms and think only of their own activity at the expense of the enjoyment of others. That is the sense that I get from the remarks that I have heard from other noble Lords and I agree with their concerns. What I do not agree with is the assumption that this legislation will end the problem. I suggest that it will only aggravate it.

Viscount Simon: The intention of Amendment No. 315A is to simplify the Bill and to remove negative and unintended side effects while still achieving the primary objectives as set out in the Framework for Action document. Letters from Defra have been somewhat confusing. In one, there is the statement that,
	"there will be no reduction in byways".
	However, Defra's own definition of byways includes RUPPs as well as BOATS and, therefore, the general understanding of this is that there has been no reduction in RUPPs or BOATS. But the Bill, as drafted, will remove vehicle rights from RUPPs, which constitute some 60 per cent of byways. I hope that when replying to this group of amendments my noble friend will be able to clarify just what is intended.
	Another statement from Defra is that,
	"existing BOATS will not be affected in any way".
	I am advised that evidence exists that there are hundreds of existing BOATS that are, in fact, accessed via RUPPs or other under recorded ways and will be rendered unusable by vehicles under the current wording. Also, if 60 per cent of byways are lost then, logically, recreational traffic on the remaining byways will increase. Once more, I hope my noble friend will be able to clarify what is intended.
	The Bill, as amended in the other place, has gone way beyond the intentions set out in Framework for Action which was published following consultation. This was a balanced outcome following a very difficult consultation period and we should not move away from that without very good reason.
	We have been made aware that there is a problem with the damaging effect of vehicles on green lanes but it is not nearly as significant as some people make out. While keeping the problem in perspective we have to do something that will be effective with regard to the totality of rural activity and usage by all legitimate users of rights of way.
	A few weeks ago Defra published Regulating the use of motor vehicles on public rights of way and off road, which stated that,
	"whilst most people who drive motor vehicles away from a public highway do so in a responsible manner, a minority disregard the negative impacts that their activity has not only on the environment but also on local communities and visitors".
	The Ramblers' Association claims that about 200 lanes are at risk but, given that there are more than 20,000 green lanes in England and Wales, we might be concerned with about 1 per cent of the total at most. It should also be remembered that most of these lanes are less than 1 kilometre in length, which means that the effect on the countryside as a whole is far less than has been suggested. Recreational users are always blamed but agriculture causes much of the damage and the Bill, in its current form, will do nothing about that.
	Defra's research states that,
	"there is no evidence of widespread damage to the byway network from motor vehicles, whether they are recreational vehicles or using byways for land management or access to dwellings".
	Does my noble friend think that removing a negligible level of traffic from some of the byways will actually have any effect other than to criminalise responsible and, in some cases, essential users?
	Several groups have sought to portray recreational vehicles in the countryside as an issue, as a means of establishing exclusivity for themselves but they seem to be trying to eliminate the recreation of one very minor group of users while enjoying their recently acquired access to large tracts of open countryside. The Bill does not deal with the abuse of green lanes by a mindless minority and, even worse, the current wording will have secondary effects such as causing access problems for thousands of rural properties and making them potentially unsellable; limiting and restricting access for disabled users; reducing access for many users such as canoeists, fishermen and many others; creating arbitrary restrictions on well established and recognised vehicle rights of way that have been used for many years without any difficulties and limitations.
	These secondary effects have generated numerous amendments when, in fact, the problem is the basic wording of Clause 62, which will remove vehicle rights at a stroke from RUPPs. We have a well used principle at work here. When a small percentage of participants in a pastime cause a problem, then we put in a ban. Perhaps some sports should be banned due to the behaviour of the participants and spectators.
	Sections 59 and 60 of the Police Reform Act 2002 give police the power to seize vehicles that are being used in a way that causes, or is likely to cause, alarm, distress or annoyance. As this existing legislation is sufficient to stop abuse, why are we proposing to remove vehicle rights anyway? Most of the RUPPs are hard stone roads used as property access and they need to be separated from the muddy tracks that are unsuitable for vehicles. There has to be a distinction.
	The other house rejected the concept of voluntary sustainability assessment. But sustainability could still be the distinction we need. It is an objective way of differentiating between ways that should be closed to all—and I repeat all—vehicles and those that can and should remain open to vehicles under a range of regulatory mechanisms. This amendment would stop the removal of those vehicle rights from existing roads provided they are sustainable following the use of compulsory sustainability assessment.
	Amendment No. 325B deals with two problems. First, it is still possible to add BOATS to the definitive maps as a result of claims made before commencement. There are said to be about 2,000 outstanding claims on the books of the Highways Authority. This figure may be incorrect but, nonetheless, many of these could become BOATS without any check on sustainability in any way. Secondly, the property access issue remains, even if it is no longer an offence to drive on a restricted byway for property access. In order to sell a property you need access to a public road or a private easement. A Member in another place said:
	"However, those people will have to prove that a public vehicular right existed before they can establish a private right".—[Official Report, Commons, 11/10/05; col. 231.]
	I predict that statement will come to haunt that Member unless vehicle rights for property access are fully retained as public highways. Totally innocent property owners should not be expected to overcome this problem—at great cost to them—imposed by an Act of Parliament.
	I hope that my noble friend will recognise the lifeline offered to him by the amendment. It stops the addition of unsuitable byways to the definite map while retaining property and disabled access. It will ensure that no vehicular right of way could be added to the definitive map unless it was first proved to be sustainable for vehicular use. Such routes unsustainable for motor vehicles would be either subject to traffic regulation orders or added as restricted byways.

Viscount Goschen: On Second Reading, I raised the issue that the noble Viscount, Lord Simon, just commented on at the end of his speech. The Bill would remove the right of certain property owners to access their properties because access over roads used as public paths would be extinguished. I remind the Committee that on Second Reading I declared an interest that a member of my family would be in exactly that position. I presume that was not the intention of the Government when they brought forward the Bill but it happened rather more according to the law of unintended consequences. None the less, it is very serious indeed if people's human rights are put at fundamentally serious risk by an Act of Parliament removing their rights to enjoy and to access their property. I am sure that is not the Government's intention, but that is what the Bill says.
	I welcome the fact that the Government recognise that this is a serious issue that needs to be addressed. The Minister has tabled Amendment No. 326, and I shall be listening with great care to his explanation of how that amendment would work and what precisely would be the position of householders whose properties are accessed via a road that was used as a public path. This is a narrow issue, but for those who are affected it is potentially extremely serious, making their properties completely unsellable under the circumstances proposed in the Bill. That would clearly be a very grave injustice if it were not properly addressed. I look forward to the Minister's explanation of his Amendment No. 326.

Baroness Byford: I follow the many good contributions that have been made to the debate, which reflected the difficulty and complexity of the situation that the Government are faced with. In bringing forward their amendment, they have tried to respond to much of the debate and discussions that were held in the Commons over a long time.
	Like other noble Lords, I have been inundated with contributions from those who really want to end the opportunity to continue to register new rights of way. I have equally had quite a lot of letters from those who care violently about their sports and very clearly feel that their sport is going to be jeopardised. Like other noble Lords, I had correspondence from those who are able to access the countryside but are technically disabled and—following on from the point made by the noble Lord, Lord Chorley—could not get there if they did not have vehicle access.
	I hope that these amendments address all those issues; I turn directly to them. The effect of our amendment to the Government's amendment will be clear to all noble Lords. Clause 62 has already been amended by government Amendment No. 318. The effect of this is to ensure that any claims covering RUPPs into BOATs, not processed by 19 May 2005, will not be considered. The effect of this is that the applications to convert byways not considered by then will fall. Those byways will retain their original status; nothing will change in law. Our amendment goes further then the Government's amendment. It will move the 19 May 2005 cut-off date back to 9 December 2003. Perhaps I should not say "cut-off date," because this will not cut anything off. At that time there was no existing right. As the opinion of John Hobson QC showed, the making of a claim is nothing more than a trigger for inquiry into whether a right exists. On that point I think the Minister and I are in agreement. The difference between our two positions is that we believe 19 May 2005 is not adequate.
	There is huge contention surrounding this part of the Bill, and understandably so. There is conflict in the countryside between those who use byways and green lanes legally and those who do not, and those who use them in a sensible manner and those who, clearly, do not. My mailbox has been full of correspondence from both sides, and I am sure other noble Lords will have found likewise. I am very grateful to have received people from the Trail Riders' Fellowship, the Land Access and Recreation Association, GLEAM and the Green Lanes Protection Group, so I think I have listened very carefully to all sides. In weighing up the cases put to me, I see a very clear distinction between acceptable and unacceptable treatment of the countryside.
	Disabled people wishing to gain access to the countryside should be able to do so. Amendment No. 328 achieves that. Those who need to access private dwellings should still be able to do so. Amendment No. 328B achieves that. The conservation and protection of our landscape and countryside has been at the forefront of our minds during the debate so far. We propose to put the date back to 9 December 2003 because that is when the consultation on this particular section of the Bill began. It was afterwards that the claims came flooding in. It is no great coincidence that when Defra announced that the NERC Bill would seek to correct the definitive map people decided to submit these claims.
	All users of public byways knew from the CROW Act, taken through very contentiously in this House in 2000, that the definitive map was to be republished. If they had been conscientious about use of countryside green lanes and byways, they could certainly put claims in before then; indeed, some did. This Bill will extinguish all claims to convert byways to BOAT status at the commencement, unless exempted by Amendment No. 318 or Amendment No. 318A. The extinguishment will not affect those rights retrospectively, because they will not have existed. After the point of consultation, the whole process was undermined by, as some noble Lords have said, people dealing dishonestly, although that is perhaps a little strong. Alun Michael, the former Minister in the other place, had asked them to consider discovering lost byways. I think this has been part of the problem, so I want to acknowledge that there are problems.
	GLEAM, on the other hand, have given the total number of applications at 9 December 2003 as 657. Their estimate then runs to 1,064 applications by March 2005 and to a total of 1,500 by May 2005. We may then turn to some of the more modest statistics offered by Defra, which states—in answer to a question from my honourable friend Jim Paice—that there were, at 17 January, 992 applications pending. I understand that Wales was not included in this overview. Nor am I clear whether those were from people making single or multiple claims. Perhaps the Minister can tell us; I think that should be clarified. There are also local authorities whose response to that particular consultation remains outstanding.
	Some applications were mooted under the provisions of the CROW Act before 9 December 2003. To allow exemptions after that point would be to give privileged status to those who had simply filled in a form, even though no existing rights were extinguished at that stage. BOATs are a new category of right of way, which will confirm and improve the existing complex highway law. Indeed, they will be in existence only after the passing of this Bill. Amendment No. 325C adds to the spirit of fairness in considering these applications. It will allow a review of the modification orders made under these sections.
	I turn, finally, to Amendment No. 328B. This deals with traffic regulation orders on the national park authorities. The safeguards that exist to protect private access are inadequate when a body with the power to make traffic regulation orders has to conserve and enhance the natural beauty, wildlife and cultural heritage of the areas, and promote opportunities for the understanding and enjoyment of such areas. Given this remit, it seems inevitable that those national park authorities will seek to make traffic regulation orders that could affect private access. The only existing protection for access to private premises with vehicles is that it cannot be prevented for more than eight hours in every 24. In reality, for a business premises, eight hours during the day could be crippling. Even this safeguard can be ignored where there is a need to preserve or improve an amenity of the area by prohibiting or restricting access by heavy commercial vehicles. This seems to leave the door open to national park authorities, who effectively have the remit to preserve and enhance the amenity of an area by stopping the access of all vehicles, even those such as tractors. This would obviously have very serious consequences for farmers who live and work in national parks, as well as having a potential impact on other rural businesses.
	I hope that, in the few moments I have taken to explain my amendments to the House, noble Lords will realise that we have looked at this very seriously and tried to weigh the balance. I believe that these amendments are needed.

Lord Bach: I thank all noble Lords who have spoken in this important debate. I have to deal with 21 separate amendments in my speech; I will take as little time as possible. Government Amendment No. 318 introduces arrangements for dealing with existing outstanding claims for rights of way that may carry rights for mechanically propelled vehicles and byways open to all traffic, called BOATS. At Second Reading I explained how the Government intend to deal fairly and appropriately with these outstanding claims. Amendment No. 318 does that. It provides that Clause 62 does not apply to any claim for BOATs made before the Bill was introduced on 19 May 2005. This means that such claims will be processed under the terms of existing legislation. Therefore, any rights they seek to establish for mechanically propelled vehicles will not be extinguished, provided the claim proves successful.
	Clause 62 will apply to any claims made after 19 May 2005, and therefore these will be dealt with under the terms of the new legislation, subject to two limited exemptions, which I will come on to shortly. This will render ineffective any byway claims made after 19 May 2005. It will, therefore, deal with claims that are intended to defeat the legislation and it will be a deterrent to further such claims.
	I mentioned two exceptions. First, we think it reasonable to provide for byway claims made after 19 May to be preserved in cases where the local authority has already reached the stage of determining the claim and has either made a definitive map modification order (DMMO), or declined to do so. We believe that this will affect a very small number of claims because few, if any, claims made after 19 May 2005 will have reached this stage.
	Secondly, not forgetting that the concern about the use of mechanically propelled vehicles on rights of way is about non-essential or recreational use, there is a strong argument for preserving claims where they are made by property owners seeking to establish a public right to their property because, for one reason or another, they have failed to establish a private right. The Bill provides for private rights where public rights once existed. But we are aware that there are some residents living on rights of way currently classified as RUPPs (roads used as public paths), who have put a lot of effort into putting together byway claims and, therefore, we intend to make provision for property owners in this predicament to enable them to make a byway claim before the window closes at commencement. There would be a very small number of such claims.
	Amendment No. 318 also amends the provisions that provide for a private right of access for property owners. This is necessary to ensure that there are no human rights issues created by commencement of the rights of way provisions at Royal Assent, without a period of statutory notice.
	Amendment No. 321 is a procedural and technical amendment that refers to certain transitional provisions set out in the Countryside and Rights of Way Act 2000. These provisions provide that, where a local authority has made a definitive map modification order under Section 53 or Section 54 of the Wildlife and Countryside Act 1981 reclassifying a road used as a public path as a footpath, bridleway or byway open to all traffic, this order must be processed to its conclusion. However, the amendment will ensure that these transitional arrangements are subject to Part 6 of this Bill in the normal way, so that unless they fulfil the criteria for any of the exemptions set out in Amendment No. 318, any vehicular rights in such claims will be extinguished.
	Government Amendment No. 323 is, again, a technical amendment. It is intended to clarify that a DMMO application is, of itself, capable of bringing a route into question for the purposes of Section 31 of the Highways Act1980. Section 31 of that Act ensures that, where there has been a continuous period of 20 years' use of a route, a public right of way may be recognised. However, in order for a right of way to be considered by a local authority for addition to the definitive map—where the rights are claimed by virtue of user evidence—it must first be "brought into question".
	The bringing into question of a right might, for example, occur by virtue of a landowner erecting an obstruction on an unrecorded path or by putting up a notice as provided by subsection (3) of Section 31 of the Highways Act 1980. However, where a right of way is claimed solely on the basis of 20 years' user evidence, it is currently unclear whether the act of making an application to record the right of way on the definitive map is in itself sufficient to bring it into question. This amendment will remove any such doubt.
	Amendment No. 326 is in two parts. The first amends an existing government provision, which provides that a restricted byway may be created through an application for a definitive map modification order. This amendment clarifies that a restricted byway can be created on the basis of both user and historic evidence. I believe that the second part is relevant to what the noble Viscount, Lord Goschen, said. It will ensure that anyone driving on a restricted byway, which was a road used as a public path prior to reclassification, to access their property would not be committing a criminal offence under Section 34 of the Road Traffic Act 1988.
	There are many people living on RUPPs who have until now relied on the uncertainty as to whether RUPPs carry vehicular rights for motor vehicle access to their property. Under the combined effect of this part of the Bill and the restricted byway provisions in the CROW Act 2000, these routes will become restricted byways and any motor vehicular rights will be extinguished. It would, therefore, become an offence to drive a mechanically propelled vehicle over them.
	In strict legal terms, anyone relying solely on the uncertain status of a RUPP for access to their property may have been ill advised. None the less, we recognise that there is a problem here that needs to be addressed. With this in mind, we have introduced this amendment to ensure that anyone in these circumstances is not left at risk of prosecution for driving over a restricted byway to gain access to their property. The noble Viscount sought reassurance on the position of those seeking to access their land by motor vehicles. The Bill will exempt from prosecution any person who needs motor vehicle access to his property along a RUPP, soon to become a restricted byway, without the need to prove a public right. Care has been taken in drafting the Bill to ensure that such persons are not penalised by this legislation. That is Amendment No. 326, subsection (2B).
	In addition, for those who need to access their property, the Bill provides for a private right of way for mechanically propelled vehicles in all cases where a public right of way for mechanically propelled vehicles is extinguished. I refer the Committee to government Amendment No. 318, subsection (3A).
	Government Amendment No. 368 provides that, as far as Part 6 of the Bill is concerned, only Clause 65 will require a commencement order to bring it into force. Therefore, the remaining rights of way provisions will commence automatically on Royal Assent. That is our intention. However, I should draw the Committee's attention to the fact that we may wish to fine tune the wording of the commencement provision at Report stage for purely technical reasons. Before Part 6 of this Bill may be commenced, the restricted byways provisions in Sections 47 to 50 of the CROW Act will need to be in force. In order for those provisions to work properly, amendments to other legislation are also necessary.
	We have laid an affirmative resolution statutory instrument before Parliament which achieves this, but because of the time taken to finalise that instrument, it cannot be guaranteed that the restricted byways provisions will be in force in time for Royal Assent of this Bill. For the Committee's information, I am referring to the Draft Restricted Byways (Application and Consequential Amendment of Provisions) Regulations which were laid before Parliament on 16 February this year.
	We will have a clearer picture of the timetable by Report stage and it may be necessary to table a further amendment at that stage enabling us to commence Part 6 as soon as the restricted byways provisions are in force. This is a purely technical matter of timetabling, rather than any lack of intention on our part to bring these provisions into force at the earliest opportunity.
	That is enough about the government amendments. I now turn to the other amendments helpfully proposed today. Amendments Nos. 310ZA and 328A, spoken to by the noble Lord, Lord Bradshaw, aim to provide that, where a traffic regulation order prohibits the use of motor vehicles over a route where public motor vehicular rights exist, on revocation of the order, the public motor vehicular rights would be extinguished in cases where the route is no longer suitable for use by such vehicles. Why do we not agree with that? The noble Lord will soon hear that we will gladly take away a number of his amendments, but this is not one of them. Why not? First, in our view, such a provision would serve no practical purpose. If the local authority considers that the route is unsuitable for use by motor vehicles, it can simply not revoke the traffic regulation order.
	Secondly, we must not lose sight of the fact that traffic regulation orders are primarily formulated for, and for the most part employed on, the ordinary roads network. There is a danger that amending the legislation relating to traffic regulation orders to deal with rights of way issues might have unforeseen and adverse consequences for the rest of the highway network. For example, the proposed amendment might encourage local authorities to neglect to maintain certain highways, using this provision as a back-door method of extinguishing rights rather than going through the proper process for statutory extinguishment.
	Amendment No. 328B in the name of the noble Baroness, Lady Byford, relates to the powers granted to national park authorities in Clause 65 to make traffic regulation orders. It is intended to ensure that no traffic regulation order made under these powers would have the effect of limiting access to land by persons with an interest in that land. We understand the concerns behind the amendment. However, the Road Traffic Regulation Act 1984 provides several safeguards for those accessing premises. The Road Traffic Regulation Act is applied by subsection (3) of our amendment to orders made by the national park authorities. We believe that these safeguards are adequate for landowners without the need for an amendment to the Bill.
	Let me come to the heart of the amendments that have been spoken to. Amendments Nos. 318A, 319, 325 and 369 are intended to change our transitional arrangements for dealing with existing outstanding claims for byways open to all traffic. Amendments Nos. 319 and 325 would remove in their entirety the transitional arrangements introduced by government Amendment No. 318, making consequential amendments to the provisions for private motor vehicular rights. This would have the effect that any vehicular rights that are the subject of outstanding BOAT claims would be extinguished under the terms of the new legislation. That would render virtually all outstanding BOAT claims ineffective, no matter on what basis they were made or how long they have been outstanding.
	Of course, many would like to see motor vehicular rights removed from as many rights of way as possible and by any means. Yet government research into the use of motor vehicles on existing BOATs found that many byways are used by motor vehicles—apparently for recreation—without any detriment to the character of the way or the enjoyment and safety of other users. Obviously there are clearly problems with the use of motor vehicles on rights of way that need to be addressed, and the Bill does that. But the Government have a duty to be fair, reasonable and balanced in the way that they deal with users of rights of way. We have already, for very good reasons, departed from an earlier commitment to allow a period for claims to be made prior to commencement. We have now provided for claims made up until the date that the Bill was published—on 19 May 2005—to be seen through to their conclusion under the terms of the existing legislation. That date is a logical one to use because it is the date on which the Government made public the terms of the proposed legislation. Using a cut-off date of 19 May 2005 has a clear and reasonable purpose in that it will act as a deterrent to claims submitted simply to thwart the aims of the legislation, which arise from that day because that was the day the Bill was published, and to protect local authorities from being inundated with such claims.
	To remove those transitional arrangements altogether does not have much logic and ignores the fact that many of the outstanding claims were made in good faith—before the Government made clear their intention to change the way in which claims would be determined in future—and are outstanding only because local authorities have not dealt with them as promptly as they are required to do by statute. Such a measure would be punitive rather than practical.
	Amendment No. 318A in the name of the noble Baroness and others would replace the May cut-off date for processing claims under the terms of the existing legislation with the date of 9 December 2003. That is the date on which the Government first published the consultation proposals that gave rise to the rights of way provisions in this Bill. We understand clearly the reason for choosing this date, which is that users of mechanically propelled vehicles may at this time have started to lodge applications to have routes recorded on the definitive map and statement as byways open to all traffic in anticipation of possible legislation to restrict such applications. It would not be fair or appropriate to apply a cut-off date that was at a time before the Government had formed a view on whether to legislate.
	On the other hand Amendment No. 369 would postpone the commencement of Clause 62 by at least 12 months from the date of Royal Assent. That would mean that claims could be lodged to register a byway open to all traffic under Section 53 of the Wildlife and Countryside Act 1981 for at least 12 months. We have made it clear that we cannot tolerate the possibility of local authorities being inundated with applications in an attempt to thwart the aims of the Bill. To abandon the currently proposed transitional arrangements now would expose local authorities to a flood of claims, and we believe that the overwhelming view in both Houses and across all parties is that that would not be acceptable. Therefore, we intend to implement the sections dealing with extinguishment of vehicular rights on Royal Assent, or as soon as possible after it, when the time-tabling of the commencement of the restricted byways provision allows.
	The aim of Amendment No. 310ZB, again in the name of the noble Viscount, Lord Falkland, is to prevent any public rights of way being extinguished at all. Under this amendment they would instead be suspended. That would undermine the whole purpose of this part of the Bill, which is to extinguish certain public rights of way for mechanically propelled vehicles once and for all, so that they cannot subsequently be recorded on the definitive map and statement as byways open to all traffic or be used by drivers of mechanically propelled vehicles in the interim. It would also introduce a huge element of uncertainty.
	Let me try to be a little more friendly in my response to Amendments Nos. 311 and 312, to which the noble Lord, Lord Bradshaw, spoke. Existing Clause 62(1)(b) ensures that public motor vehicular rights are extinguished only over routes that, immediately before commencement, are used less by motor vehicles than by other users, such as walkers, cyclists, or horse riders. That is to ensure that extinguishment affects only routes that are mostly used as rights of way as opposed to the ordinary roads network. Amendment No. 311 would remove this provision and Amendment No. 312 would replace it with another provision, which would exempt from extinguishment any route where it can be shown that, for a significant period before commencement, the public use had been mainly by motor vehicles. We recognise that there may be a better way of expressing the same view than we have been able to find so far. With the noble Lord's permission and, I hope, his support, we shall take it away and see whether a suitable government amendment can be drafted to achieve what the noble Lord proposes.
	Likewise with Amendment No. 314, which would amend Clause 62(2)(a), to ensure that those routes recorded on the list of streets and not recorded on the definitive map and statement are exempted from extinguishment only when they are recorded on the list of streets immediately before commencement. This is our intention and we think that the existing clause already achieves that. We also recognise that the Bill might benefit from clarification in this respect and, again we will consider that amendment, too.
	While I am speaking about that clause, there is a particular assurance I wish to give to those who are concerned that the inclusion of this provision in statute will lend weight to the view, already held in some quarters, that there should be a presumption that routes recorded on the list of streets carry vehicular rights. Defra has always maintained that inclusion of a route on the list of streets is not conclusive evidence of what rights it carries, and there can be no presumption that these routes carry vehicular rights. Each case should be considered on its own merits. It follows that Defra takes the same view about routes shown on Ordnance Survey maps as other routes with public access. We will be issuing guidance to local authorities and rights of way inspectors to clarify that.
	I turn briefly to Amendments Nos. 315A and 325B, in the name of my noble friend Lord Simon. Amendment No. 315A would provide that a route would not have its public motor vehicular rights extinguished by Clause 62 if it could be demonstrated that the route could sustain continued use by mechanically propelled vehicles. In other words, it seeks to apply a statutory, sustainable test to determine what rights should exist over a route. Similarly, Amendment No. 325B seems to provide that public rights for mechanically propelled vehicles may be added to the definitive map and statement only where it has been demonstrated that the route could sustain continued use by such vehicles. It would also provide that public rights for mechanically propelled vehicles may be added to the definitive map and statement where they enable motor vehicular access for persons with an interest in the land.
	Putting aside that we believe that the two amendments are unworkable, I have reservations about a statutory sustainability test which I will come to. But it is unnecessary to provide a public motor vehicular right of access for persons with an interest in land, because Clause 62 already provides a private right for such persons.
	Amendment No. 325C would apply a sort of sustainability test, to be applied by the Secretary of State, to all byway applications received between 9 December 2003 and the commencement of the legislation, while requiring a traffic regulation order to be imposed where the test found that motor vehicle use would be damaging or dangerous to other users. It also introduces a genuinely retrospective element into the provisions.
	We have severe reservations about a statutory approach to assessing the suitability of established byways. A similar approach was taken in the Countryside Act 1968 and disputes about some of those reclassifications are still ongoing. Such a measure would be neither fair nor practicable. I appreciate that there is widespread concern about the byway claims submitted during the passage of the Bill; we have therefore introduced transitional arrangements to deal with them, but we have to be fair and reasonable in how we deal with users of rights of way.
	Amendment No. 324, in the name of the noble Lord, Lord Bradshaw, aims to amend government Amendment No. 323. Again, we wish to look at that more closely and undertake to consider an amendment to that effect at a later stage. Likewise, with Amendment No. 327—a reworded version of government Amendment No. 326—we recognise that there may be a loophole in so far as people may be exempt from Section 34, and again we shall return to that.
	I have gone on for a long time in order to deal with 21 different amendments. I hope that I have set out the Government's position on this important debate.

Viscount Colville of Culross: Could the Minister go on for one further moment? Underlying all that is a problem with which I am familiar; that is, the establishment of the existence or character of rights of way on a definitive map. Plainly, it is taking much too long to come to a decision about these things. That is one reason for the difference of dates and why we have this problem in the first place. Is there anything that the Government can do—while being fair, reasonable and balanced, as I appreciate that they are—to try and speed that process up? I know that it is a matter of evidence and hearings, and a matter for the planning inspectorate to consider. However, is there no way at all—

Baroness Darcy de Knayth: I intervene very briefly, because I have taken no part in debates on the Bill, but Amendment No. 316 has sparked me off. We need clarity and, as the noble Lord, Lord Bradshaw, said in our previous debate, there has been scaremongering about disabled people. My excuse for intervening is my interest, which I must declare, as the president of Disabled Ramblers. I must say that that is in name only; I have never been an active rambler.
	As I understand it, users of all types of wheelchairs—classes 1, 2 and 3—are classed as walkers for these purposes. Perhaps the Minister will confirm or clarify that when he replies. Amendment No. 316 would apply to disabled people who use adapted vehicles—wheelchairs are specially made. The Disabled Ramblers supports their wish to access the countryside, but it stresses that these vehicles need to stick to the roads with proper, firm surfaces. It makes the point that these surfaces should be better maintained than they are. The rest of the Committee knows much better about that than I do, as I do not go along them. The Disabled Ramblers says that even the more powerful wheelchairs have great difficulty with ruts and damaged surfaces.

The Duke of Montrose: I support the general thrust of the amendment tabled by my noble friend Lord Dixon-Smith. I shall speak to our Amendment No. 328. As Members of the Committee have just heard, modern wheelchairs are miracles of design, are exceedingly mobile and can be manoeuvred easily and fast. I believe that they can go up very steep hills, if necessary. For those people who enjoy the open air, I believe that these wheelchairs can traverse muddy lanes, patches of sandy soil, slopes and ridges, and can even climb stairs. But they are solo vehicles.
	Our contention is that this Bill should be drafted to ensure that people who are confined to wheelchairs are classed with those who travel our rural paths on foot—as the noble Baroness said, we would like clarification on that—and are enabled to use all the routes along which their vehicles are able to go. However, there is difficulty in regulating and policing roadways. If roadways are available only for people who are travelling on foot, as the noble Lord, Lord Berkeley, said, it is always possible to put in gates, kissing gates, styles and so forth. But the minute that one wants to make proper provision for disabled people, that becomes more difficult. Perhaps a way will be discovered that will assist disabled people.
	I have had a small problem at home in Scotland where the laws are slightly more difficult, but disabled people have exactly the same problem. In order to deter motor vehicles, we have put in a special gate, which has a gap in it that is big enough for a horse, but with a bar at the bottom. When we installed the gate, the bar was 15 inches above the road. We were told that a disabled person who liked to ride had come along, but her horse would not cross the bar. I was slightly inclined to say that we had allowed for disabled riders but not for disabled horses. In the event, we raised the level of the road sufficiently so that the lady's horse can cross over.
	There are obviously many technical difficulties that have to be overcome in combining foot traffic with the type of vehicles that disabled people are able to use. It may be that the Minister would wish to add a clause to ensure that able bodied people will be banned from using a motorised wheelchair on rights of way. He may wish to devise a system of punishment for anyone caught using one without qualified use.

Lord Bach: Amendment No. 316 seeks to ensure that people who drive mechanically propelled vehicles that are specially adapted to their disability may continue to drive that vehicle on rights of way over which public motor vehicular rights have been extinguished. Amendment No. 328, which was just spoken to by the noble Duke, seeks to ensure that a vehicle designed to be used solely by a person who is registered disabled falls outside the definition of a mechanically propelled vehicle and can therefore be used on rights of way over which public rights for mechanically propelled vehicles have been extinguished.
	We recognise that many disabled people use specially adapted vehicles to access the countryside. However, drivers of invalid carriages are already protected from prosecution under Section 34 by a specific provision in the Chronically Sick and Disabled Persons Act 1970, which excludes such vehicles from the definition of a motor vehicle in certain legislation provisions. Therefore, the use of vehicles designed to be used solely by persons who are registered disabled is already provided for. Those vehicles must comply with certain prescribed requirements set out in legislation in order to be exempt from prosecution.
	Providing for the use of mechanically propelled vehicles that are specially adapted would be beyond the scope of this amendment and extremely difficult to administer and enforce: how is one to determine what is a special adaptation and therefore who is entitled to make such use? This would risk opening a significant loophole and create uncertainty in the interpretation and application of the law leading to confusion and possible conflict. In any event, such vehicles would include four-by-four vehicles weighing up to two tonnes or more, which are potentially just as damaging to fragile, unsealed surfaces as other mechanically propelled vehicles and would therefore disadvantage other users with mobility problems.
	Moreover, the Bill's provisions will not reduce the existing network of byways open to all traffic, which extend to around 4,500 kilometres in England and Wales—roughly 2 per cent of the rights-of-way network. They will still be open to all drivers of mechanically propelled vehicles, including those with mobility problems.
	Amendment No. 317 would ensure that people would be exempt from prosecution under Section 34 of the Road Traffic Act 1988 where they were driving on a restricted byway to access an organised event such as a point-to-point or motocross. Organisers and spectators who currently use motor vehicles on such routes will in future require the permission or "lawful authority" of the relevant landowner. However, that will be no different from the way in which they currently have to obtain permission to drive on a route where no public vehicular rights exist. This lawful authority will mean that they will not be open to prosecution under the Road Traffic Act 1988.
	Amendment No. 325A seeks to provide that use of a route by bicycle will count as evidence that the route in question is a restricted byway. The Government believe that a bicycle qualifies as a non-mechanically propelled vehicle and that a qualifying period of use by pedal cycle may count as evidence towards establishing a restricted byway. We are happy to see something to that effect in the Bill. I recognise that cycling interests have concerns about how local authorities and rights-of-way inspectors treat evidence of pedal cycle use when determining applications to have rights of way added to the definitive map and statement. But we believe that our Amendment No. 322 provides what cyclists seek and addresses their concerns about whether a qualifying period of past or future cycle use may give rise to a restricted byway.
	Moreover, we believe that the government amendment, as an amendment to the Highways Act, rather than a freestanding provision, sits better in the existing legislative framework than my noble friend's Amendment No. 325A. It also places a limitation on the maintenance liability of local authorities, which may encourage them to look more favourably on establishing a restricted byway on the basis of pedal cycle use.
	I understand that cycling interests are looking for an assurance that evidence of pedal cycle use, which would count towards establishing a restricted byway, can be adduced from a time before commencement of the restricted byway provisions, as well as afterwards, or from a period that extends across the commencement date. I can give that assurance now. Restricted byway rights are simply a collection of other types of rights which have existed for a long time; that is, a right on foot or on horseback or leading a horse and a right for vehicles other than mechanically propelled vehicles. That last right is not new. It always existed in the past alongside rights for mechanically propelled vehicles. Therefore, there would no reason why evidence of use should not be adduced from a period before commencement.
	Amendment No. 322A seeks to amend our Amendment No. 322 to various existing statutory provisions that have relevance to restricted byways. Those amendments fall into broadly two categories. Amendments in the first category attempt to change existing rights-of-way legislation simply to accommodate the new category of right of way; namely, a restricted byway. However, such amendments are unnecessary, since the draft restricted byways regulations, which I have mentioned in a previous debate, were laid before Parliament on 16 February. They include all the amendments that we believe are necessary to ensure that this new category of right of way works effectively within the existing legislative framework.
	Amendments in the second category attempt to redefine and change the essential nature of restricted byways, so that they are more like footpaths and bridleways than the old RUPPs and byways open to all traffic, and would not have the physical characteristics required to accommodate horse-drawn vehicles. I can see why that would be advantageous to cyclists, but what about drivers of horse-drawn vehicles, who have been patiently waiting since the CROW Act for the new category of right of way—restricted byways—to be implemented? Have they waited all this time for a category of right of way that would accommodate their needs, without the disadvantages that mechanically propelled vehicular rights bring with them, to have—at the eleventh hour—the essential nature of restricted byways changed in a way which would deny them access? We are keen to encourage access for cyclists, but unless the Committee is happy to deny access to horse-drawn vehicles as well as mechanically propelled vehicles, we do not think it can be done in this way. Moreover, because of Clause 62, all the routes that would have been recorded as byways open to all traffic will now become restricted byways. The proposed provisions would change these in ways that would alter all the characteristics that make these lanes attractive to all classes of user.
	I want to repeat that the Government are keen to help promote off-road access for bicycles, and should a need be identified for further regulations under the CROW Act in order to resolve a difficulty that emerges with regard to use of pedal cycles and restricted byways, there is nothing to prevent us making such regulations.
	I was asked a number of questions. What can we do to improve surfaces of rights of way for wheelchair use? We know that local authorities are seeking to upgrade rights of way, but it is a question of balance of resources. I want to take that point away and consider it. Could restricted byways be used to join up existing rights of way? Yes, local authorities can create restricted byways. Will we be issuing guidance to local authorities that cycle use can give rise to restricted byways? The answer is yes, we will be.
	I have not, I think, answered the question of the noble Baroness, Lady Darcy. If I have not, I will write to her.

Lord Dixon-Smith: My Lords, I am grateful to the Minister for a comprehensive reply and for giving us the background that we now need to consider properly before we come to any conclusions. I assure the noble Lord, Lord Berkeley, that it was not from lack of support for cyclists that I said nothing at the beginning of this debate, but it seemed highly improper in opening on a group of amendments to comment on amendments before their proposers had had a proper chance to have their say.
	I am a little concerned about the question of horse-drawn vehicles. I have lived in the countryside all my life, and there were some beautiful green lanes in Essex in my youth. Yet they were completely impassable virtually all the year round. The vehicular traffic that used them in those days was the horse and cart. The carts had narrow wheels and often heavy loads, and the horses had big feet and heavy steel shoes, so these tracks became immensely rutted. In winter, they were full of water and almost impassable. In summer, of course they dried out but the ruts were still there; you did not have to slop along in a lot of mud, but you could hardly walk because the ground was so uneven. The reason many of these green lanes are more passable today is that agricultural users—farmers—have in most cases levelled these lanes for their own convenience. The job is now taken on by local authorities, where they have the resources, for which we are immensely grateful, and the public are using access. That is the background.
	I am grateful to the Minister. He has conceded that there is a case but he has not conceded that it needs to be answered. I need to study what he has said and consider whether we need a further discussion. For now, I beg leave to withdraw the amendment.

Baroness Byford: My Lords, to deal with 21 amendments all together in one group has been outstanding. I should like to record my thanks to the Minister for that and also thank him for having listened to the various diverse contributions. We are grateful that he is going to go away, think about some of these amendments and come back to the issues at Report. Under those circumstances I should like to reserve the right to consider all the new amendments that are coming back and also to reflect on Amendment No. 318. At this stage, I beg leave to withdraw the amendment.

Lord Haworth: In moving the amendment, I shall speak also to Amendment No. 129. This has taken me mildly by surprise. I seem to have been waiting weeks to introduce my brief amendment to this Bill, and suddenly it comes when I was daydreaming. I will not detain the Committee for long in explaining the purposes of the new clause which I wish to see inserted into the Bill. We have had lengthy debates on the green lanes issue over some time. It has been controversial and many different points of view have been expressed. I am not aware that my amendment is of an equally controversial nature. Indeed, I hope my noble friend on the Front Bench will consider its merits.
	The purpose of Amendment No. 129 is to rectify a strange anomaly in the law. The amendment provides that every inner London borough and the City of London would,
	"have the duty to prepare and keep under continuous review a definitive map and statement of public rights of way",
	in their area. For many years every area except for the 12 inner London boroughs and the City have had to have an official map of public rights way, known as the definitive map. Londoners have been losing out. The Bill provides a perfect opportunity to rectify the anomaly by placing a duty on the inner London boroughs to prepare these maps. Such an opportunity might not readily arise again for a number of years.
	Perhaps it would be helpful if I briefly outline the history of this matter. The requirement for definitive maps first appeared in the National Parks and Access to the Countryside Act 1949. All rural surveying authorities were required to prepare them. Before that, recreational walks, horseback riding and so on must have been a matter of chance because it would have been difficult to know whether one was on a public highway or not. The Wildlife and Countryside Act 1981 made definitive maps compulsory for everywhere else, including all urban areas; that is, everywhere except inner London.
	The benefits of such maps to the public are legion. If public highways are not officially recorded they can be built over, encroached on, smuggled into someone's garden or just plain lost—without warning, either through ignorance or by intent. Unrecorded paths are unlikely to be shown on popular maps. People do not know where they are and may not use them, or users may be challenged and either not know or not be able to prove that they have a right to be there. Inner London is rich in these sorts of public paths and they ought to be recorded—alleyways, Dickensian passageways and Pepysian stairs. There are ways down to the foreshore of the Thames and so forth, many of which are valuable as traffic-free shortcuts.
	Definitive maps should encourage the authorities to take more pride in their paths. If the law is amended to require the inner London boroughs to prepare maps, I am confident that amenity groups and voluntary organisations which support this proposal will be in a position to encourage their members to play an active role in undertaking surveys, submitting claims for public highways and checking maps. It would be well worth it to ensure that London's historic path network is properly recorded and protected.
	In bringing forward this amendment I am supported by my noble friends Lord Dubs and Lord Soley who, in previous lives, both represented inner London boroughs and are aware of the issue. I also have to say with great sadness that I would without doubt have been supported by my friend Tony Banks, Lord Stratford, if he had been able to be with me here tonight. Of that I am absolutely certain. I beg to move.

Lord Haworth: I am grateful to my noble friend for his kind offer to give this issue further detailed consideration. Although the Government might not be able to accept the amendments at this stage, which I understand, they might look favourably on the possible device of accepting at the Report stage a way forward by perhaps introducing a further clause to give the Government powers by order to take these matters forward after carrying out the necessary consultations the Minister considers are important.

Lord Bach: moved Amendment No. 322:
	After Clause 62, insert the following new clause—
	"PRESUMED DEDICATION OF RESTRICTED BYWAYS AND USE BY PEDAL CYCLES ETC.
	(1) Amend section 31 of the Highways Act 1980 (c. 66) (dedication of highway presumed after public use for 20 years) as follows.
	(2) After subsection (1) insert—
	"(1A) Subsection (1)—
	(a) is subject to section 61 of the Natural Environment and Rural Communities Act 2006 (dedication by virtue of use for mechanically propelled vehicles no longer possible), but
	(b) applies in relation to the dedication of a restricted byway by virtue of use for non-mechanically propelled vehicles as it applies in relation to the dedication of any other description of highway which does not include a public right of way for mechanically propelled vehicles."
	(3) After subsection (10) insert—
	"(10A) Nothing in subsection (1A) affects the obligations of the highway authority, or of any other person, as respects the maintenance of a way."
	(4) After subsection (11) insert—
	"(12) For the purposes of subsection (1A) "mechanically propelled vehicle" does not include a vehicle falling within section 189(1)(c) of the Road Traffic Act 1988 (electrically assisted pedal cycle).""
	[Amendment No. 322A not moved.]
	On Question, amendment agreed to.

Lord Bach: moved Amendment No. 323:
	After Clause 62, insert the following new clause—
	"PRESUMED DEDICATION AND APPLICATIONS UNDER SECTION 53(5) OF THE 1981 ACT
	(1) In section 31 of the 1980 Act, after subsection (7) insert—
	"(7A) Subsection (7B) applies where the matter bringing the right of the public to use a way into question is an application under section 53(5) of the Wildlife and Countryside Act 1981 for an order making modifications so as to show the right on the definitive map and statement.
	(7B) The date mentioned in subsection (2) is to be treated as being the date on which the application is made as mentioned in paragraph 1 of Schedule 14 to the 1981 Act."
	(2) The applications in relation to which the amendments made by subsection (1) apply include any application under section 53(5) of the Wildlife and Countryside Act 1981 (c. 69) to which section 62(3) applies."
	[Amendments Nos. 324 and 325 not moved.]
	On Question, amendment agreed to.
	[Amendments Nos. 325A to 325C not moved.]
	Clause 63 [Supplementary]:

Lord Bach: moved Amendment No. 326:
	Page 26, line 2, leave out subsections (1) and (2) insert—
	"(1) In section 53(3) of the Wildlife and Countryside Act 1981 (c. 69) (modification of definitive map and statement in consequence of certain events)—
	(a) in paragraph (b) (expiration of period raising a presumption of dedication), after "public path" insert "or restricted byway", and
	(b) in paragraph (c)(i) (discovery of evidence of right of way), after "public path" insert ", a restricted byway".
	(2) Amend section 34 of the Road Traffic Act 1988 (c. 52) (prohibition of driving mechanically propelled vehicles elsewhere than on roads) as follows.
	(2A) In subsection (2), omit "(subject to section 34A of this Act)".
	(2B) After subsection (2) insert—
	"(2A) It is not an offence under this section for a person with an interest in land, or a lawful visitor to any land, to drive a mechanically propelled vehicle on a road if, immediately before the commencement of section 47(2) of the Countryside and Rights of Way Act 2000, the road was—
	(a) shown in a definitive map and statement as a road used as a public path, and
	(b) in use for obtaining access to the land by the driving of mechanically propelled vehicles by a person with an interest in the land or by lawful visitors to the land."
	(2C) In subsection (6), for "and section 34A of this Act do" substitute "does".
	(2D) In subsection (7), insert at the appropriate place in the alphabetical order—
	""interest", in relation to land, includes any estate in land and any right over land (whether exercisable by virtue of the ownership of an estate or interest in the land or by virtue of a licence or agreement) and, in particular, includes rights of common and sporting rights;"."
	[Amendment No. 327 not moved.]
	On Question, amendment agreed to.
	Clause 63, as amended, agreed to.
	Clause 64 [Interpretation]:
	[Amendments Nos. 328 and 328A not moved.]
	Clause 64 agreed to.
	Clause 65 [Traffic regulation on byways etc. in National Parks]:
	[Amendment No. 328B not moved.]
	Clause 65 agreed to.
	[Amendment No. 329 not moved.]
	Clause 66 agreed to.
	Clause 67 [Constitution of Council]:

Baroness Byford: Earlier in Committee we moved amendments calling for the appointments taken to follow the process of open and fair competition. On this occasion we are looking to the appointment of the chairman of the Inland Waterways. The appointment is to be made by the Secretary of State after having consulted the Scottish Ministers. The amendment is really to seek clarification on the way that this will be done. I wish to speak also to Amendment No. 333, which is a probing amendment. I understand that the council will be set up with a minimum of 13 members, two of whom are to be appointed by Scottish Ministers. What is the nature of advice that the council is likely to consider appropriate and to what or to whom will it be appropriate? Is the advice appropriate because of the knowledge and expertise of the people offering it, or is it because the council feels that it should meet the needs of the Secretary of State? Will they have some guidance as to what is required?
	It is perhaps even more difficult to understand why that body of people with only two Scottish members should be set up to offer similarly appropriate advice to Scottish Ministers. I beg to move.

Baroness Farrington of Ribbleton: As the noble Baroness said, the amendments are designed to require the Secretary of State to select the chairman and members of the council following an open and fair competition regulated by the Commissioner for Public Appointments. Clause 67 gives the council a new constitution as an independent body responsible to the Secretary of State in England and Wales and Scottish Ministers. It preserves the council as a body with a chairman and a minimum of two members, and, as the noble Baroness says, retains the requirement for two members to be appointed by Scottish Ministers. The reason this clause does not specify the procedures the Secretary of State should employ when appointing the chairman and members is that Ministers are already required to follow the Commissioner for Public Appointments code of practice when making appointments to NDPBs. The council is covered by the code, and that will not change. I hope that will satisfy the noble Baroness.
	Amendment No. 332 is a technical amendment designed to reflect the fact that the new Inland Waterways Advisory Council will be an advisory, rather than an executive, NDPB. Clause 68 transposed responsibility for the support of the council from British Waterways to the Secretary of State and Scottish Ministers, and we have therefore had to consider how that support should be provided. NDPBs are usually considered as either executive or advisory. Executive bodies receive grants in aid and submit annual reports and accounts to Parliament, while advisory bodies form part of a parent department and receive funding from that department's budget. The existing council does not fit neatly within either of those categories.
	We have concluded that it would be appropriate for the new council to be classed as an advisory NDPB. That means the new Section 110A(7) of the Transport Act 1968 inserted by Clause 68 of the Bill is no longer appropriate, as the new council will not receive payments from the Secretary of State and Scottish Ministers, but will be funded directly by the parent department. The government amendment substitutes wording customarily used to authorise Ministers to support advisory NDPBs.
	The noble Baroness's Amendment No. 333 would delete subsection (1) of Clause 69, which gives the Council new statutory advisory functions in England and Wales. If this were accepted, the Council would be unable to offer advice to anyone about the inland waterways in England and Wales, and would not even be able to rely on its existing powers because they are being repealed by Clause 67. We are changing the Council's role because the Government need a source of independent expert advice about the strategic use of all the counties' waterways, especially the contribution they can make to Government policies for rural as well as urban areas. The Council is ideally placed to fill that role, and to advise navigation authorities and all other bodies with an interest in the wider use of waterways.
	The links with British Waterways and the formal statutory advisory functions are now out of date. We are therefore separating the Council from British Waterways and giving it new, broader terms of reference so it can advise government, navigation authorities and other interested persons about all uses. We are preserving the constitution as a cross-border body with responsibilities in Scotland as well as England, and for that reason we are preserving the current arrangement for two members appointed by Scottish Ministers.
	Perhaps this will help the noble Baroness. The work in Scotland will be limited because its brief will extend only to inland waterways owned or managed by British Waterways, or in respect of which British Waterways is providing technical advice or assistance. But experience and knowledge of Scottish waterways requires members with that particular background, and we believe that having two members strikes the right balance because of the balance of interest and concern. I hope the noble Baroness will accept that the Council needs to be given a new remit if it is to be able to play a full part in helping to maximise the benefits provided by inland waterways. I hope also that noble Lords will accept that the existing balance should be kept. I therefore invite the noble Baroness to withdraw her amendment.

Baroness Farrington of Ribbleton: If the noble Baroness, Lady Byford, would allow it, I shall speak first to Amendment No. 342, which we understand to be aimed at those joint committees to which the noble Baroness referred. These were created to manage those areas of outstanding natural beauty that straddle more than one local authority. We believe there to be a good case for easing restrictions on delegations to joint committees in this instance. We would like to consider it further and come back with proposals on Report.
	Amendment No. 340 and Amendment No. 341 seek to add volunteers working under the direction of a local authority officer to the categories of person who can discharge a function under a Part 8 agreement with the local authority. Voluntary and community organisations backed by Defra funding make an important contribution, as referred to by noble Lords, in developing and delivering Defra policies, service delivery, strengthening rural communities and achieving sustainable development. I am delighted that Defra has recently been awarded a commendation by the National Compact Working Group for excellence in compact work. The amendments, however, would make volunteers directly accountable and responsible for discharging the function under an agreement.
	The noble Duke recognised, from the range of examples referred to, that this is a complex and technical area of local government legislation and we hesitate to stray into it. The Bill is framed so as to allow volunteers to make a real contribution to the exercise of these functions, while at the same time making sure that the chain of accountability remains clearly in place and with those primarily responsible: the local authority. The reason for drafting the clause in this way is to clarify the arrangements where an authority that is party to a Part 8 delegation agreement is operating executive arrangements under the Local Government Act 2000, to which the noble Baroness, Lady Miller of Chilthorne Domer referred. This means that they have arrangements in place for discharging these responsibilities through committees or officers of the council.
	I hope, therefore, that the noble Duke will not press his amendment, It is an extremely complex area. The Bill makes clear that the officer rightly remains responsible and accountable for discharging the function. I understand that it reflects similar provisions with the same end in mind. The executive of the local authority is responsible for strategic considerations, and the full council, often discharging its responsibility through a committee or officers, takes the day-to-day decisions on development control. Broadly, then, they are all incorporated within the Bill. It is a complex legal area and we do not want to do anything that causes, even inadvertently, harm to the value of the contributions to which the noble Duke referred.

Baroness Miller of Chilthorne Domer: I wish to speak to Amendments Nos. 352A, 352B and 352C in the name of my noble friend Lord Livsey who is not well. He deeply regrets that he is not here to speak to them.
	We on these Benches feel that getting right the role of the levy boards, which, as the noble Baroness said, has been reviewed in the Radcliffe report, is critical now that CAP reform is being enacted. We fully support that reform, but now that producers and farmers must gain more of their income from the market, and less from subsidy, the role of the levy boards has become more critical.
	The Meat and Livestock Commission, for example, is one of the bodies that can make a considerable impact on behalf of the meat industry. Parliamentarians come across it at the annual barbecue. That barbecue is attended by every Defra Minister, and it is a great opportunity for the industry to lobby. The commission has become an able body at getting the important points across. In times of great uncertainty in the industry, the Beef and Lamb Executive is another example of a body that must have a future.
	There are issues of funding. As the noble Baroness, Lady Byford, said correctly, the association between the boards and those paying the levy is critical. I do not argue with her about that. I look forward with interest to the Minister's reply on the issue of levy boards. We shall want to return to it on Report.
	I want to put on the record that the issue is particularly at the top of my mind because all west country lamb went to one supermarket for one contract through one major processor. That contract has ended; the processor is taking no more west country lamb; and the west country sheep farmers are in pretty dire straits at the moment. Those industry bodies are critical to them, and the future of west country sheep farming is something on which I have been reflecting.
	I know that the Minister has received a letter from Devon County Council about the beef industry. I declare an interest as my husband is a member of that council—the letter is probably from him. Both those issues have made me feel particularly strongly about the role of the levy boards and the future of our livestock industry.

Lord Hylton: I rather regret that the noble Lord, Lord Carter, was not here to explain his reason for opposing Clause 80, which states that the Secretary of State may do things by order that would normally require primary legislation. It is therefore pretty questionable on those grounds.
	I also observe that Clause 80 enables the "appropriate authority"—whoever that may be—to establish new bodies, but it does not give a power to dispense or wind-up redundant bodies. It may be debatable to what extent the levy boards have proved useful. The noble Baroness, Lady Miller—

Lord Bach: This group of amendments addresses a set of inter-related issues around levy bodies and their future. I know the Committee will understand if I am slightly reticent on the topic, as we are presently considering the important conclusions to which Rosemary Radcliffe has come in her report. We have made no decisions about them yet, and I will in due course announce what decision the Government have taken.
	Part 8, Chapter 2 gives the Secretary of State order-making powers—as the noble Lord, Lord Hylton, just reminded us—to establish new bodies for agricultural and related industries and to dissolve the existing levy bodies. I will not name them all, as everyone in the Committee knows which they are. There are also provisions to amend or dissolve any new bodies created by orders made under this chapter. We have already agreed Clause 80, which enables the appropriate authorities to establish one or more levy bodies for a defined purpose by an affirmative resolution order, limited by Clause 81. The clause allows functions—limited by Clause 82—to be assigned to one or more new levy bodies and provides for the constitution of such a board as set out in Schedule 8. Orders under Clause 80 will cover the essential detail for such a new statutory body within the parameters set by Clauses 80 to 83 and related Schedules 8, 9 and 10.
	This chapter of the Bill will provide the means for implementing the recommendations of last year's independent review of the statutory agricultural and horticultural levy bodies, conducted by Rosemary Radcliffe, for which the Government, and everyone else, should be extremely grateful. One key recommendation of the report is to restructure the agricultural Levy Boards according to a new model. It envisages a single NDPB, which would replace the existing five NDPBs and act as a holding company for subsidiary sector companies, which would carry out the day-to-day functions of the current levy bodies—with the possibility that separate boards might be required for certain levy activities in the devolved regions. Such an overarching levy board would establish a common framework of activities, planning, performance monitoring and reporting arrangements.
	The Bill represents, in this case, an important and timely opportunity to put in place a general provision that would provide for changes to the Levy Board structure. As I say, I will be making announcements in the spring about the outcome of recent consultations on the Radcliffe proposals. The only place in the Bill where I believe that certain changes need to be made, following publication of the report, is in Schedule 10, which deals with the ancillary provisions relating to such a new levy board.
	Not only do Government want to have the option of implementing the Radcliffe model—in full or in part, depending on views expressed in the recent consultation exercise—but, given the rapidly changing nature of farming, as referred to in our short debate this evening, we need to have sufficient flexibility built into the legislation if we want to revisit the structures of the levy bodies in future years. That is a tall order, but we need to be able to optimise delivery structures in that particular area with efficiency, and future parliamentary time for this specialised area of necessary primary legislation will inevitably not be easy to secure.

Baroness Miller of Chilthorne Domer: While the Minister is looking at the future of the Levy Boards and considering all those issues, will he take up an issue on which, as I am sure he is aware, I have now asked a number of Written Questions? It is on the role of the various regional development agencies in performing similar functions in food and farming—that is, furthering what we now refer to as the Curry report and its implementation. As he will know from his department's answers to my questions, there are so many different models of delivery achieving rather different outcomes. In some cases the outcomes are successful and in some much less so. While he is looking at the whole picture across Levy Boards, I wonder whether he could also take that into account.

Lord Bach: Indeed I will. I am grateful to the noble Baroness for raising the point. The Curry process is of course at the centre of how we see farming develop during the next few years and the RDAs have an important role to play in that. One issue that we must decide is what role the Levy Boards have to play. The noble Lord, Lord Hylton, expressed his view that there might be a better way of doing it. We must consider that matter in deciding what we do about the Radcliffe report. On the other hand, many people—including the noble Baroness, Lady Miller, herself—have praised what the Levy Boards do in some cases and believe that they should continue to exist, albeit in a slightly altered form as a consequence of the Radcliffe report. However, I will bear in mind what she has had to say.
	We believe that the tightly constrained affirmative order-making powers will deliver an appropriately flexible mechanism to allow for future reorganisation of the Levy Boards while maintaining—this is important—a sufficient degree of parliamentary scrutiny.
	I shall now deal briefly with the amendments. I shall start with the government amendments. Amendments Nos. 345 to 352 are designed as enhancements to this chapter to ensure that the Government will be able to implement changes. I must emphasise that the powers are enabling provisions. Orders made under this chapter will be subject to strong parliamentary scrutiny by virtue of the affirmative resolution procedure—the approval of both Houses will of course be required before any order can be made. Amendment No. 345 has been tabled to ensure that there is an express power for a new board to set up and operate through subsidiary companies. The Radcliffe model envisages that each agricultural sector will have its own subsidiary company with its chairman sitting on the main board.
	Amendment No. 350 introduces a specific, express power to enable the board to charge for its advisory and other services. It also clarifies the incidental powers that can be exercised by the board. In particular, I draw the Committee's attention to the fact that the board may raise funds by means of voluntary contributions, as well as by means of a compulsory levy. We wish to provide for the board to be able to raise voluntary contributions from industry to facilitate additional functions that would not be an appropriate use of statutory levies. One example might be a hardship fund.
	Amendment No. 351, with two small consequential amendments, Amendments Nos. 346 and 348, bring together the various situations in which an order could require the board to obtain the approval of the appropriate authorities. In my amendment, references to the need to obtain approval of the appropriate authority would be concentrated under a new paragraph headed,
	"Approval of appropriate authority, consultation etc.".
	Therefore, references would need to be deleted elsewhere in the schedule. Amendment No. 351 may make provision for the exercise of a specified function to be subject to conditions—for example, a condition requiring a ballot to be held for the purpose of imposing or terminating a levy or ascertaining the views of farmers or others who would be affected by a levy.
	Amendments Nos. 346, 348 and 351 are an interconnected group that is technical in nature. Obviously, I shall go into detail if I am required to do so, but we think that they add further to the proper supervision of the board's functions. In due course, I shall move those amendments.
	The noble Baroness, Lady Byford, made some interesting comments in moving her amendment, Amendment No. 343, and in speaking to Amendment No. 344. She argued that a Clause 80 order should not include provisions for pensions for board members. We have debated identical probing amendments several times, as the noble Baroness reminded us. On 29 January, and again yesterday, I wrote to her. I hope that what I had to say to her in pages 1 and 2 of my letter yesterday will go some way to answering her questions. I can say that serving members will not receive pensions from the non-departmental public body; they will receive them only on retirement.
	On the regulation of any new board by the Commissioner for Public Appointments, my noble friend Lady Farrington of Ribbleton explained on 8 February (at col. 701 of the Official Report) that there is an existing convention that the Secretary of State is required to follow the OCPA code.
	On Amendments Nos. 352A, 352B and 352C, we very much hope that the noble Lord, Lord Livsey of Talgarth, will be back with us soon, perhaps even on Report. The Bill already provides the scope for ensuring that an order can establish an NDPB levy board in Scotland or Wales under Clause 80, so the amendments are unnecessary and would create uncertainty about which parts of the Agriculture Act continue to apply in Wales only. Once the MLC is dissolved—I pay tribute to it as the noble Baroness did—I am advised that there is no way in which another body can seek to rely on the powers contained in the Agriculture Act 1967. Therefore, I am afraid that we cannot find favour with either of the approaches mentioned to find a way of setting up a separate levy board to cover Wales. I think that I have dealt with all the amendments that have been moved in this group.
	The noble Lord, Lord Hylton, asked why we should use secondary legislation instead of primary legislation. The Delegated Powers and Regulatory Reform Committee—a powerful and important committee—scrutinised the Bill and the explanations that we gave to it, and it has not responded adversely to the decision to use a statutory instrument order-making power. Indeed, three of the existing levy bodies were set up under the Industrial Organisation and Development Act 1947 by way of secondary legislation.

Baroness Byford: I thank the Minister and all Members for their comments, which were very good. Like the noble Lord, Lord Hylton, I was disappointed that the noble Lord, Lord Carter, was not here to explain why he was anxious that this clause should not stand part of the Bill. Because we had moved on, I did not think that I could presume that. He may come back to it on Report.
	Even at this late stage, I should like comment because we have hit on an important topic. First, we are at a crucial time of change in the farming industry, of which the Minister is well aware. The way in which business was done traditionally is very much in question. The noble Lord, Lord Hylton, has referred to supermarkets. I will not continue down that alley, but there are great concerns about the way in which food is purchased. The amount that the prime producer is paid today in comparison with what he was paid years ago is minuscule. I think that he now gets about 7p from every pound, which is down from 50p about 50 years ago. My figures are not exact, but this is a big issue.
	Secondly, I am sure that the Minister's concern is the same as mine. It is worrying that quite a few prime producers feel remote from their levy bodies, which they feel do not represent their needs in the way that they would like them to do so. That is just a warning shot, which we need to address. This is not good for the long-term and needs to be given further thought.
	Thirdly, I turn to the existing levy bodies. I pay tribute to the work that Rosemary Ratcliffe has done. She has produced a very good report. As the noble Lord said, we await the spring to hear exactly what will happen. It may be that some levy bodies that have existed traditionally may not be necessary in future, which the Minister touched on slightly. With the change to the single farm payment, the subsidies and so on which farmers receive, and the circumstances in which they operate, may not be the same in five or 10 years' time. So I am well aware of the need for this section, for which I am grateful.
	The noble Lord, Lord Hylton, referred to the original Milk Marketing Board, which, obviously, was first dissolved when we were in government. I wish to raise an important point. In those days, we were told that it held too much power over the way in which milk was produced in this country. Nowadays, we compete on a global setting. I hope that Rosemary Ratcliffe will read our comments on this part of the debate. We operate in very different circumstances: we operate globally. Some countries have 90 per cent or more co-operatives. Surely, we must think again about the way in which we operate in this country or have had to operate since the decision was taken to stand down the Milk Marketing Board and the three boards that followed. Otherwise, it is totally unfair to the British producer that we should act in an uncompetitive way.
	I apologise to the Minister for having taken a little longer, and I propose, when we come it, not to oppose the Question that Schedule 9 should stand part. In some ways the debate we have already had around this has covered it. I hope the Minister will take on board those few comments I have made because they are enormously important. We are at a big crossroads with agriculture today, and whatever we can do in the way of levy boards, whatever way we can help improve their ability to produce and be competitive, will make this Bill all the more welcome. I beg leave to withdraw the amendment.

5 (1) A section 80 order may include provision making the exercise of a specified function or description of functions conferred on the board—
	(a) subject to the approval of the appropriate authority, or
	(b) subject to any other conditions.
	(2) The provision that may be made by virtue of sub-paragraph (1)(b) includes, in particular—
	(a) provision requiring the board to be satisfied, before a levy is—
	(i) imposed, or
	(ii) terminated,
	that the imposition or termination of the levy is desired by a substantial number of the persons who would be or are affected by the levy;
	(b) provision requiring ballots to be conducted, in such circumstances as may be specified in the order, for the purpose of ascertaining the views of persons who would be or are affected by a levy;
	(c) provision requiring the board to consult a specified person or a description of persons before exercising a specified function or description of functions."
	Page 70, line 33, at end insert "or an authorised officer"
	On Question, amendments agreed to.
	Schedule 10, as amended, agreed to.
	Clause 84 [Power to dissolve existing levy bodies]:
	[Amendments Nos. 352A to 352C not moved.]
	Clause 84 agreed to.
	Clauses 85 to 87 agreed to.
	Clause 88 [Directions]:
	On Question, Whether Clause 88 shall stand part of the Bill?

Viscount Eccles: In speaking to the Question whether Clause 88 should stand part, I am again exploring the constitutional practice in relation to directions, whether made by the Secretary of State or—as in Clause 88—authorised either by the Secretary of State or by the National Assembly of Wales, by Scottish Ministers or by the relevant Northern Ireland department.
	In the discussions in Committee on Clauses 16 and 25, and on Amendment No. 276, the following points emerged: that directions are a matter of last resort, and that there are three principal reasons why directions might be needed: first, if public funding "goes completely awry"—I am quoting from Hansard; secondly, in the event of a major conflict of policy; and, thirdly, in the event that the non-departmental public body itself asks for a direction to settle a highly political issue. I would personally hope that an independent NDPB would not get itself into the last position; it would not say much for its independence. Be that as it may, the Minister's description of the way in which directions might be used does not give rise to a contentious issue, despite the absence of any parliamentary procedure, which is, in my view, a defect in the way we proceed.
	There remain two constitutional points which need some consideration. The first is that experience shows that Ministers do not uniformly take the same view of directions as that outlined by the Minister in this case. The second is that it is necessary to take into account the possible ways in which practice towards directions might develop in Wales, Scotland and Northern Ireland as well as in England or for the United Kingdom. It is risky just to include this clause as a kind of reflex. It is usual practice to have such a provision, and in it goes, perhaps without further thought.
	I would be grateful for the Minister's assessment of the need for this clause in relation to these bodies and his thoughts on how it might be used in different ways by the devolved administrations. I beg to move.

Lord Bach: I thank the noble Viscount for raising this topic in relation to Clause 88, as he has on previous occasions during the consideration of this Bill in Committee. The clause confers powers on the appropriate authority to give directions to a board as to the exercise of its functions and requires of course that such directions be published, which is an important step. The latter requirement was a specific one made last spring by the Efra Select Committee in its pre-legislative scrutiny and has been accepted by the Government.
	Perhaps I may point out that in current legislation general directions may be served on the Meat and Livestock Commission and the Home-Grown Cereals Authority, two of the existing bodies. The noble Viscount asked how he thought these might be used, and I give an example of how they have been used in recent times. A clarificatory direction was used in April 2004 to make it clear that the MLC was operating within proper parameters when delegating levy collection and distribution functions to the newly created devolved body, Quality Meat Scotland. The direction ensured that for accountability purposes, there was proper written authorisation for this delegation. Of course the noble Viscount has pointed out that it is only right that these powers of directions are standard for all non-departmental public bodies but, thankfully, they are rarely used. Nevertheless we think that Ministers, who are accountable to Parliament for the levy bodies, must be able to issue directions where it appears necessary to do so.
	The noble Viscount was kind enough to set out the three main reasons I have argued in support of the need for this standard inclusion. I shall not repeat those reasons, but I want to make it clear that they are not a tool to undermine in any way the independence of the levy bodies. Rather we believe that they act more as a safeguard for levy payers if, to use his expression, matters go awry or, as in the case of the Meat and Livestock Commission, nothing had gone wrong but it was necessary to provide a formal record for accountability purposes. We do not see these directions being used very often; indeed, we think that they will seldom be used. I emphasise again that they are essential for accountability purposes.
	On a previous clause stand part debate, I said that I would write to the noble Viscount about this matter, and I, copied my letter to noble Lords. Given the interesting points he has raised during the course of our Committee proceedings, I think it would be helpful for me to put in writing our thinking on this important constitutional issue. However, I hope that I am not giving it too great a significance. I have not written so far because we needed to debate Clause 88, the last of the clauses under which we intend to set up such a system, so I shall now write to the noble Viscount. However, I hope he will forgive me if that is all I say about it tonight.

Lord Bach: This amendment seeks to introduce a new clause to enhance the Environment Agency's capacity to deliver water quality and wetland biodiversity improvements under the Water Resources Act 1991. Clause 92 amends the existing powers of drainage bodies so that, when making land drainage by-laws or taking decisions under such by-laws, they are able to take proper account of the environmental effects. This amendment is not related to the by-law power but is designed, as the noble Baroness has told us, to extend the Environment Agency's general flood defence powers so it can protect and restore wetland and aquatic biodiversity. I fully understand the rationale for this in relation to the Environment Agency's role in implementing the Water Framework Directive.
	There are certainly challenges to be faced in implementing that directive regarding requirements for measures to control impacts resulting from hydromorphological changes, including those associated with flood defence and land drainage. However, we believe, rather like the Environment Agency, that the proposals tabled by the noble Baroness have come forward too early. We think that more thorough consideration is needed of whatever gaps in current legislation may need to be filled in order to implement the directive. We need to look at this holistically.
	In implementing the requirements of the directive, Defra and the Environment Agency are undertaking work in relation to hydromorphology, including possible need for legislative change. The Environment Agency is considering the ecological impacts which may result from hydromorphological changes—including those resulting from flood defence and land drainage—as well as from other activities such as navigation, development and agriculture.
	At the same time, Defra is considering how the current controls can be used to address those impacts and achieve directive objectives. These two elements will be brought together in developing proposals for any new or amended measures, including any legislative changes.
	Rather than take a piecemeal approach to legislation, we need to consider together all flood defence and land drainage legislation, including the legislation under which bodies other than the Environment Agency—that is, local authorities and internal drainage boards—operate. We need also to consider other policy developments including the cross Government Strategy on Flood and Coastal Erosion Risk Management—Making Space for Water—and there is also the possibility of the European Directive on Flood Management.
	Defra intends to consult on measures in relation to hydromorphological impacts in late 2006, including the need for new or amended powers. Any new powers would have to be established by December 2009.
	In the meantime, I should point out that the EA has powers to carry out work which creates environmental enhancements. Although not strictly related to river management, one good example—the noble Baroness may know it—is the recent Defra grant-aided Alkborough scheme along the Humber Estuary. Estimated to cost over £11 million, this significant project will see the existing tidal defences realigned, creating some 170 hectares of new inter-tidal habitat and 200 hectares of assorted other natural habitats.
	This clearly demonstrates that the powers in Section 165 of the Water Resources Act can be exercised in certain circumstances for conservation purposes. The EA has a general duty to promote the conservation and enhancement of the natural beauty and amenity of inland and coastal waters and of land associated with such water, and to promote the conservation of flora and fauna which are dependent on an aquatic environment.
	It also has a duty (under Section 7 of the Environment Act 1995), in formulating or considering any proposal relating to any of its functions, to take into account the effect which its proposals would have on the beauty or amenity of any rural area or on any flora or fauna.
	But the powers proposed here are extremely wide, and it is not clear how they would relate to the words "in connection with a main river" with which Section 165(1) is prefaced.
	The Government are committed to the implementation of all aspects of the Water Framework Directive and in so doing will consider, among other things, making any necessary amendments to flood defence legislation.
	With that assurance, and while appreciating the positive motive behind the amendment, I invite the noble Baroness to withdraw this amendment.

Baroness Byford: As the noble Baroness, Lady Miller of Chilthorne Domer is well aware, we do not share the same view with regard to RDAs; it is something that is well known—our party does not believe that the RDAs are the appropriate body. But I thank her for raising this particular question.
	Does the Minister feel that the balance in the Bill is right between economic competitiveness and sustainability? I too have slight doubts about that. On previous days in Committee I expressed my doubts, in the confidence of the noble Lord, Lord Haskins, that the RDAs will fulfil the job that the Government are expecting them to do within this Bill. I have a question on that. As the Minister knows, we on these Benches would much rather see that role of delivery passed down to a more local level, particularly to a county and district or metropolitan level, rather than being left at regional level. The Government have great confidence that the structure will work well but we are still concerned about the rural survival, as I have put it in my notes. That is perhaps too dramatic, but I do not think it really is—RDAs are very big bodies, and the whole question of rural development and rural sustainability is very much crucial to success as far as many people living in rural areas are concerned. With the likely change within the CAP reform and the single farm payments, the payment to Pillar 2 will be squeezed and some of the very things that Defra was hoping would be achieved through the rural development agencies and the Rural Development Service may well be jeopardised.
	I thank the noble Lady again for giving me this opportunity. Although in some ways I support the thoughts behind her amendments, in practice I do not hold the same view on regional development agencies as she does.

Baroness Miller of Chilthorne Domer: I realise it is late but I gave notice of the question to the Minister's team, so I am slightly surprised by his reply. I look forward to receiving his letter, but I may need to return to the matter on report depending on his answer. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 94 agreed to.
	Clauses 95 to 97 agreed to.
	Schedule 11 [Minor and consequential amendments]:

Lord Bach: Amendment No. 356A would try to enhance the negotiating position of the landowner where either Natural England or the Countryside Council for Wales was seeking to compulsorily purchase land where it was necessary to do so to conserve a specially vulnerable site.
	The amendment addresses a perceived problem with existing compulsory purchase procedures, attempts to set specific timelines for negotiations and seeks to improve the cash flow position for any landowner who wishes to get an independent final ruling on the fair price for the land from the Lands Tribunal.
	There are already well established procedures for dealing with such negotiations and advance payments under the Land Compensation Act 1973, as recently enhanced by the Planning and Compensation Act 2004, for advance payments to be made while the final payment is subject to determination by the tribunal.
	The advance payment provisions in the 1973 Act enable 90 per cent of the acquiring authority's estimate of the compensation due to be paid within three months of the claimant's written request. This, combined with the fact that under the terms of Section 1 of the Compulsory Purchase Act 1965 interest is payable from the date on which the authority enters and takes possession until the outstanding compensation is paid, would at first sight seem to offer sufficient safeguards to ensure that landowners are not disadvantaged.
	Additionally, the proposed amendment would represent an exception to the provisions that apply for land that is not within an SSSI. We can at present see no justification for treating landowners whose land is acquired under Section 15A of the Countryside Act 1968 differently from those whose land is compulsorily purchased for other reasons under other compulsory purchase powers. If an exception is made in this case, this would make for inconsistency between acquiring authorities under different legislative regimes. We do not think that can be right.
	In any event the 60 days mentioned is a very short period for agreeing the amount of compensation. Sometimes this can be a complex process and could take much longer. I hope that answer satisfies the noble Baroness.

Lord Bach: This group of eight minor amendments address two technical issues that I do not intend to take long in describing to the Committee. The first three are small clarifications to three paragraphs within Schedule 11 of minor and consequential amendments. They will ensure that there is consistency of application within the Wildlife and Countryside Act 1981, clarifying whether particular provisions apply to the 12-mile territorial waters round England and Wales. Amendment No. 359 adds a new sub-paragraph within paragraph 76 of the schedule. That reflects a late clarification from the Scottish Executive that it does not want the new definition of "premises" introduced in Committee in the Commons to apply in Scotland.
	The other two small consequential amendments are Amendments Nos. 357 and 358. The remaining five amendments contain small consequential amendments that make minor amendments to the Wildlife and Countryside Act 1981. I remind noble Lords that the term "limestone pavement" refers not to pavements outside a house but to outcrops of rock, whose surface has been dissolved by water over millions of years. I knew that noble Lords would know that. I beg to move.